United States District Court, E.D. Pennsylvania
INTRODUCTION AND BACKGROUND
Raven Kinley-Davis, an African American woman, brings this
suit against Defendants NHS Philadelphia,  her current
employer, and Paul Sachs, a fellow employee who had
supervisory authority over her. (Doc. No. 1.)
April 24, 2017, Plaintiff filed a charge of discrimination
(also known as an administrative complaint) with the Equal
Employment Opportunity Commission (EEOC). (Id.
¶ 14.) On May 1, 2017, she received a Dismissal and
Notice of Rights from the EEOC, which allowed her to file the
instant Complaint. (Id. ¶ 15.)
26, 2017, Plaintiff filed the Complaint. (Id.) In
Count I, she alleges claims of discrimination and retaliation
based on race under 42 U.S.C. § 1981. (Id.
¶¶ 64-67.) In Count II, she alleges discrimination
based on race and sex under Title VII of the Civil Rights Act
of 1964 (“Title VII”). (Id. ¶¶
68-70.) In Count III, she alleges retaliation under Title
VII. (Id. ¶¶ 71-73.) In Count IV, she
alleges discrimination based on race and sex under the
Pennsylvania Human Relations Act (PHRA). (Id.
¶¶ 74-77.) In Count V, she alleges retaliation
under the PHRA. (Id. ¶¶ 78-80.) In Count
VI, she alleges aiding and abetting under the PHRA.
(Id. ¶¶ 81-83.) In Count VII, she alleges
discrimination and retaliation based on race and sex as well
as aiding and abetting under the Philadelphia Fair Practices
Ordinance (FPO). (Id. ¶¶ 84-88.)
Thereafter, Defendants filed a Partial Motion to Dismiss the
Complaint. (Doc. Nos. 5-6.) On November 21, 2017, Plaintiff
filed a Response in Opposition to the Partial Motion to
Dismiss. (Doc. No. 8.) Defendants filed a timely Reply. (Doc.
No. 12.) On December 13, 2017, a hearing was held on the
Motion (Doc. No. 5), which is now ripe for
disposition. For the reasons that follow, the Motion
will be granted in part and denied in part and the case will
be placed in suspense pending a decision by the Pennsylvania
Human Relations Commission (PHRC) on Plaintiff's
to Federal Rule of Civil Procedure 12(b)(6), Defendants move
to dismiss the Complaint in part because they contend that
for various reasons the Complaint fails to state a claim.
Specifically, Defendants seek to dismiss Counts IV, V, VI and
VII brought pursuant to the Pennsylvania Human Relations Act
(PHRA) and the Philadelphia Fair Practices Ordinance (FPO);
the Retaliation claims in Counts III, V and VII; and all
claims made against Paul Sachs in his individual capacity in
Counts VI and VII. (Id.) Each of Defendants'
arguments in opposition to Plaintiff's claims will be
addressed in turn.
Plaintiff's PHRA and FPO Claims Will Not Be Dismissed for
Failure to Exhaust Her Administrative Remedies. Rather, the
Case Will Be Placed in Suspense Pending a Decision by the
contend that the Court should dismiss Plaintiff's PHRA
and FPO claims contained in Counts IV through VII of the
Complaint. They assert that Plaintiff has failed to exhaust
her administrative remedies under the requisite enabling
statutes, given that she filed her Complaint before the
one-year period in the PHRA and FPO had expired. This
expiration date begins the time during which the charge of
discrimination must be filed in court. The need for Plaintiff
to wait one year to file suit under the PHRA or FPO would be
obviated if the PHRC either has dismissed the charge or
Plaintiff was a party to a conciliation agreement. Neither
has been done to date. (Doc. No. 5-2 at 7.)
plaintiff “must exhaust all required administrative
remedies before bringing a claim for judicial relief.”
Mandel v. M & Q Packaging Corp., 706 F.3d 157,
163 (3d Cir. 2013) (quoting Robinson v. Dalton, 107
F.3d 1018, 1020 (3d Cir. 1997)). To bring a claim under the
PHRA, a plaintiff must file a charge of discrimination with
the PHRC or EEOC, which transmits the complaint to the PHRC,
and procure a notice of the right to sue. Id.;
Lukas v. Westinghouse Elec. Corp., 419 A.2d 431, 452
(Pa. Super. Ct. 1980) (explaining that transmittal of the
EEOC complaint to the PHRC constitutes a filing of a verified
administrative complaint). Once a complaint is filed before
the PHRC, the complainant cannot file a judicial action until
the PHRC dismisses the charge or enters into a conciliation
agreement to which the complainant is a party. 43 Pa. Cons.
Stat. § 962(c). Either of these events must take place
within one year of the PHRC filing. Id. If the
one-year period expires with no resolution by the PHRC, the
complainant is then free to initiate a court action.
Id. The FPO has the same requirements as to timing
for when a plaintiff is permitted to bring suit in state or
federal court. Phila. Code § 9-1122.
Plaintiff filed a charge of discrimination with the EEOC on
April 24, 2017 (Doc. No. 5-3 at 2) and received her Dismissal
and Notice of Rights (otherwise known as a notice of right to
sue) on May 1, 2017 (Doc. No. 19). She then filed this action
on July 26, 2017 (Doc. No. 1), which was premature on the
state law claims because it was filed before the one-year
period in the PHRA and FPO had expired. As noted, to date,
the PHRC has not dismissed the charge and there has been no
conciliation agreement. Therefore, Plaintiff filed suit
before exhausting her administrative remedies according to
the requirements in the PHRA and FPO. 43 Pa. Cons. Stat.
§ 962(c); Phila. Code § 9-1122.
for reasons stated on the record at the hearing with counsel
for the parties held on December 13, 2017, the Court need not
dismiss Plaintiff's claims under these statutes because
it can instead place the case in suspense pending a decision
by the PHRC on the charge of discrimination. Once the PHRC
issues a decision, the case will be restored to active status
and Plaintiff's claims will be considered as timely
filed. Thus, the Court will not dismiss Plaintiff's PHRA
and FPO claims contained in Counts IV through VII. Rather,
the Court will place the case in suspense pending a decision
by the PHRC.
Plaintiff Exhausted Her Administrative Remedies as to Her
Retaliation Claims Brought Pursuant to Title VII, the PHRA
and the FPO
argue that the Court should dismiss Plaintiff's
retaliation claims contained in Counts III, V and VII because
Plaintiff did not include them in her charge of
discrimination with the EEOC. For this reason, Defendants
argue that Plaintiff has failed to exhaust her administrative
remedies. In her Response, Plaintiff does not dispute that
she did not check the box on her charge of discrimination
alleging retaliation. However, she asserts that because she
alleged “numerous instances where Defendants retaliated
against her as a result of her reporting claims ...