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dismissing claim as time-barred where plaintiff failed to adequately allege the requirements of equitable tolling in her complaint or in her opposition to the defendants' motion to dismiss
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Civil Action No. 03-5612
December 16, 2003
MEMORANDUM AND ORDER
Plaintiff instituted this action in the United States District Court for the Eastern District of Pennsylvania on October 8, 2003. In addition to asserting a claim for sexual discrimination under the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e, et seq., Plaintiff also asserts a state claim for unlawful termination pursuant to the New Jersey Conscientious Employee Protection Act ("CEPA"), and a common law claim for wrongful discharge.
Defendants' have moved to dismiss all counts of Plaintiff's Complaint, contending that Plaintiff's claims are untimely or insufficient as a matter of law. For the reasons discussed below, we convert Defendants' Motion To Dismiss into one for Summary Judgment for the purposes of adjudicating Plaintiff's Title VII claim, and deny this motion. Moreover, we grant in part and deny in part Defendants' Motion To Dismiss Plaintiff's supplemental state law claims.
Background
We present the relevant facts as Plaintiff alleges them in her Complaint, and in part as set forth in the additional matter both parties submitted for this Court's review.
On November 15, 1999, Defendant Open MRI of Warren, LLC hired Plaintiff Sandra Davitt to work as an insurance biller at Defendants' Allentown facility, Open MRI of Allentown. (Compl. ¶ 8.) Plaintiff was promoted as a result of her excellent work performance, and ultimately became the Regional Manager in charge of Defendants' Allentown and newly established Phillipsburg facilities. (Compl. ¶¶ 10-12.) In April or May of 2001, after reporting her pregnancy and intention to take maternity leave, Defendants' partner/owner, Joseph Galazin, instructed Plaintiff to train his wife, Deborah Galazin, to perform Plaintiff's work duties. (Compl. ¶¶ 14, 15.) Joseph Galazin informed Plaintiff that his wife would temporarily fulfill Plaintiff's responsibilities during Plaintiff's maternity leave, and that Plaintiff could resume her duties upon returning to work. (Compl. ¶ 16.) Plaintiff began her maternity leave in July of 2001. (Compl. ¶ 17.) When Plaintiff resumed work at Defendants' Phillipsburg premises on September 4, 2001, she discovered Deborah Galazin performing her job functions. (Compl. ¶ 20.) On September 6, 2001, Joseph Galazin advised Plaintiff that his wife was performing Plaintiff's position because "he could not take a chance that Plaintiff would not be available because she had a baby." (Compl. ¶ 26.) After enduring a number of negative comments regarding her pregnancy, Plaintiff complained to Joseph Galazin of discrimination. (Compl. ¶ 28.) Plaintiff was terminated on November 16, 2001, (Compl. ¶ 29) purportedly because her position was eliminated. (Letter from Galazin to Davitt of 11/16/01, PL Ex. E.) She subsequently filed charges with the Equal Employment Opportunity Commission ("EEOC") of Philadelphia on September 12, 2002. (Davitt Aff. ¶ 7.) The EEOC Pittsburgh office to which Plaintiff's case was transferred rejected Plaintiffs discrimination claim for failure to timely file. (EEOC Dismissal and Notice of Rights of 8/27/03, Def. Ex. B.) Plaintiff received a the Notification of Right to Sue from the EEOC on August 30, 2003, and filed this complaint within ninety days thereafter. (Compl. ¶ 5.)
Plaintiff also engaged in whistleblowing activities during the course of her employment at Defendants' Phillipsburg facility. Specifically, Plaintiff reported what she perceived to be New Jersey state law violations to the New Jersey Department of Health Senior Services on February 28, 2001, and March 19, 2001. (Compl. ¶¶ 37, 38.) Plaintiff's complaints led the New Jersey Department of Health Senior Services to conduct an on-site investigation of Defendants' business operations, beginning December 6, 2002. (Compl. ¶¶ 43.) The agency ultimately cited Defendants for various state law violations. (Compl. ¶¶ 44.) Although Plaintiff was discharged on November 16, 2001, she was unaware that Defendants knew of her complaints to the New Jersey Department of Health Senior Services until after October 9, 2002. It was on this date that Defendants informed Plaintiff's sister, also a former employee of Defendants, of its knowledge that Plaintiff had been filing complaints with the State of New Jersey. (Compl. ¶¶ 39-42.) Plaintiff filed the instant Complaint on October 8, 2003.
Discussion
I. Jurisdiction
We have original, subject matter jurisdiction over Title VII claims under 28 U.S.C. § 1331. We may consider Plaintiff's common law claims by exercising our supplemental jurisdiction under 28 U.S.C. § 1367(a).
II. Standard of Review
A motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), tests the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Accordingly, an action will be dismissed under 12(b)(6) only when the plaintiff has failed to state a claim upon which relief can be granted. The criteria for deciding whether a plaintiff has met this standard have been clearly established. "In reviewing a motion to dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party." Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). This Court need not credit, however, any conclusory allegations of law, unsubstantiated conclusions, and/or unwarranted factual inferences.Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). In addition, a complaint should be dismissed only if it appears to a legal certainty that a plaintiff could prove no set of facts which would entitle him or her to relief. D.P. Enterprises v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
If a party asserting a motion to dismiss for failure to state a claim attaches matters outside the pleadings which "are presented to and not excluded by the court," then the court "shall" treat the motion "as one for summary judgment" so long as the parties are given a "reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b); see, e.g., Cohen v. McAllister, 688 F. Supp. 1040, 1040 (W.D.Pa. 1988) (converting defendants' motion to dismiss into one for summary judgment based on affidavits accompanying parties' submissions).
III. Title VII
Defendants' Motion To Dismiss Plaintiffs Title VII claim is premised upon the argument that Plaintiff failed to file charges with the EEOC within the timeframe required by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. For the following reasons, we convert Defendants' Motion To Dismiss into one for Summary Judgment, and proceed to deny it.
A. Converting Motion to Dismiss into Motion for Summary Judgment
A motion made pursuant to Fed.R.Civ.P. 12(b)(6) shall be treated as one for summary judgment and disposed of in accordance with Rule 56 if matters outside the pleading are presented to and not excluded by the court. Fed.R.Civ.P. 12(b)(6). Both Plaintiff and Defendants have presented the Court with materials outside the pleadings. Specifically, Defendants have submitted a copy of the Right to Sue letter dated August 27, 2003, sent from the EEOC to Sandra Davitt, indicating that Plaintiff's charge was dismissed because of her failure to timely file with the Commission. Plaintiff, in return, has submitted a sworn affidavit, various correspondence between herself and the EEOC, and a copy of the termination letter dated November 16, 2001, sent to herself from Joseph Galazin. As the parties have thus been given a reasonable opportunity to present relevant materials in support of their respective contentions, we will convert Defendants' Motion To Dismiss the Title VII claim into one for summary judgment.
B. Summary Judgment Standard of Review
The court shall render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505, 91 L.Ed.2d 202. All inferences must be drawn, and all doubts resolved, in favor of the non-moving party — in this case, Plaintiff. United States v. Diebold. Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). On a motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and would support a favorable jury finding. Id. at 321 n. 3, 106 S.Ct. 2548, 91 L.Ed.2d 265 (quoting Fed.R.Civ.P. 56(e)); Anderson. 477 U.S. at 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202; see First Nat'l Bank of Pa. v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The party opposing summary judgment may not rest upon mere allegations or denials, but must set forth specific facts, presenting affirmative evidence showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202.
C. Title VII
Title VII "makes it unlawful for any employer 'to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.'" Suders v. Easton, 325 F.3d 432, 441 (3d Cir. 2003) (citing 42 U.S.C. § 2000e-2(a)(1)). Before bringing forth a Title VII discrimination claim, the statute requires that a Plaintiff first file a timely charge with the EEOC. See 42 U.S.C. § 2000e-5(e). Specifically, the charge must be filed "within three hundred days after the alleged unlawful employment practice occurred . . ." Id. Title VII's exhaustion and filing requirements are non-jurisdictional prerequisites, and are akin to statutes of limitations. See Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).
It is undisputed that the "unlawful employment action" in this case occurred on November 16, 2001, when Defendants terminated Plaintiff allegedly in violation of Title VII. (See PL Br. at 5; Defs.' Reply Br. at 2.) It is on this date that the statute of limitations accrued. Moreover, Plaintiff's affidavit states that a written charge was filed and docketed with the EEOC on September 12, 2002. (Davitt Aff. ¶¶ 7, 8, 14.) Defendants' Reply Brief accepts this representation as true, (see Defs.' Reply Br. at 2-3), and thus we find as a matter of law that Plaintiff filed her written charge with the EEOC pursuant to 42 U.S.C. § 2000e-5(e)(1) on September 12, 2002. Defendants' contention that Plaintiff failed to file a charge alleging her discrimination claim "within three hundred days after the unlawful employment practice occurred" is thus incorrect. § 2000e-5(e)(1) (emphasis added). Fed.R.Civ.P. 6(a) provides general uniform guidelines regarding the measurement of time periods under the Federal Rules of Civil Procedure, the local rules of any district court, any court order, and various applicable statutes. It states:
(a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or,. . . in which event the period runs until the end of the next day which is not one of the aforementioned days. . . .
Fed.R.Civ.P. 6(a). Courts have held that Fed.R.Civ.P. 6 applies to time calculations made pursuant to section 2000e et seq. of Title 42. See,e.g., Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999) (applying presumption of Rule 6(e) to time calculation made under 42 U.S.C. § 2000e-5(f)); Kane v. Douglas. Elliman. Hollyday Ives. 635 F.2d 141 (2d Cir. 1980) (applying Rule 6(a) to computation of time under 42 U.S.C. § 2000e-5(f)). Taking three hundred days from her filing with the EEOC and counting as the first day the day following the accrual of the action, see Fed.R.Civ.P. 6(a), Plaintiff filed her charge with the EEOC on the 300th day. Contrary to Defendants' contention, Plaintiff thus complied with the time limitations imposed by 42 U.S.C. § 2000e-5(e)(1), and may proceed with her Title VII claim in federal court. Accordingly, Defendants' Motion To Dismiss, converted into a Motion For Summary Judgment with respect to this claim, is denied.
IV. CEPA
Count II of Plaintiff's Complaint asserts that she was unlawfully terminated in violation of the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. Specifically, Plaintiff claims that she was discharged in retaliation for her disclosures to the New Jersey Department of Health and Senior Services. Defendants' Motion To Dismiss argues that Plaintiff's CEPA claim is time-barred, and that the discovery rule and equitable tolling do not apply. Because we find that CEPA's statute of limitations has expired, and that the limitations period has not been tolled, we grant Defendants' Motion To Dismiss this claim.
CEPA's statute of limitations provision provides that "[u]pon a violation of any of the provisions of this act, an aggrieved employee or former employee may, within one year, institute a civil action in a court of competent jurisdiction." N.J.S.A. 34:19-5. The Supreme Court of New Jersey has held that "when the employer's alleged conduct consists of wrongful termination, the employee's cause of action under CEPA accrues on the date of actual discharge." Alderiso v. Med. Ctr. of Ocean County, 770 A.2d 275, 277 (N.J.Sup.Ct. 2001). Thus, Plaintiff's CEPA claim accrued on November 16, 2001, the date she was terminated. (See Compl. ¶¶ 46, 47.) As Plaintiff filed the instant Complaint on October 8, 2003, her cause of action under CEPA is foreclosed by the one year limitations period absent tolling of the statute. Plaintiff's Brief urges us to apply either the discovery rule or the doctrine of equitable tolling to toll the statute.
The discovery rule "avoids the mechanical application of a statute of limitations by postponing the accrual of a cause of action so long as a party is unaware either that he has been injured or that the injury was due to the fault or neglect of an identifiable person." Villalobos v. Fava, 775 A.2d 700, 704 (N.J.Super.Ct. 2001). In the case sub judice, Plaintiff alleges that although she was discharged on November 16, 2001, she "had no knowledge that Defendant was aware of her complaints to the State of New Jersey, Department of Health and Senior Services until after October 9, 2002." (Compl. ¶ 42.) In Villalobos, however, the New Jersey Superior Court noted that the discovery rule has never been held to be applicable to CEPA, and that "the statute is barren of any language suggesting its application." Id. at 706. In reaching this conclusion, the Superior Court first noted that courts have employed the discovery rule outside of the medical malpractice and products liability cases from which it evolved. Id. at 705. Nevertheless, the court emphasized the reluctance of the New Jersey Supreme Court to apply the rule when "legislative definition and specification" is present. Fernandi v. Strully, 173 A.2d 277, 285 (N.J.Sup.Ct. 1961). Thus, the New Jersey Supreme Court refused to apply the discovery rule to toll the statute of limitations under the Unsatisfied Claim and Judgment Fund because the legislature had restricted relaxation of the limitations period to specified exemptions. Brookins v. Murray, 619 A.2d 583 (N.J.Sup.Ct. 1993). See also Schwarz v. Fed. Shipbldg Dry Dock Co., 108 A.2d 417, 421 (N.J.Sup.Ct. 1954) (refusing to apply discovery rule to Workers' Compensation Law because "this court cannot read something into a statute that is not there"); Interlox Punch Die Corp. v. Insilco Corp., 415 A.2d 1208 (N.J.Super.Ct. 1980) (holding discovery rule inapplicable to fraud action under New Jersey Uniform Securities Act because statute did not include "accrual" language);Presslaff v. Robins, 403 A.2d 939 (N.J.Super.Ct. 1979) (declaring discovery rule inapplicable to limitation period of Wrongful Death Act because of the absence of statutory language to support its application). CEPA does not contain language of accrual, and is devoid of any indication that the discovery rule can serve as an appropriate device to temper the limitations period. Thus, in accordance with New Jersey caselaw, we find that the discovery rule cannot be used to toll the statute of limitations provision of CEPA. Although this conclusion is chiefly based upon the New Jersey Superior Court's Villalobos decision, we find its rationales persuasive and believe that the New Jersey Supreme Court, if confronted with the issue, would agree with its analysis.
In contrast to the discovery rule, equitable tolling "assumes the accrual of the action but intercepts and delays the bar of the statute of limitations because the plaintiff lacked vital information which was withheld by a defendant." Villalobos, 775 A.2d at 704. The doctrine typically applies when the complainant has been induced or tricked into allowing the limitations period to pass. Id. at 707. Plaintiff's assertion, contained in her brief, that Defendants misled her into believing that her termination was due to reasons other than her whistleblowing activities does not warrant equitable tolling of the CEPA limitations period because the doctrine "requires the exercise of reasonable insight and diligence by a person seeking protection." Id. at 708. Plaintiff's Complaint fails to allege that she exercised due diligence in ascertaining the true cause of her dismissal, or that she could not, through reasonable diligence, have discovered the pertinent information bearing on her claim. Moreover, nowhere in the Complaint does Plaintiff allege that the Defendant actively misled her regarding the reason for her discharge. Such an allegation is necessary to invoke equitable tolling. Oshiver v. Levin. Fishbein. Sedran Berman. 38 F.3d 1380, 1387-88, 1391 (3d Cir. 1994).
Plaintiff's cause of action pursuant to CEPA is time-barred. Because the discovery rule is inapplicable and because Plaintiff has failed to adequately allege the requirements for equitable tolling to apply, Defendants' Motion To Dismiss Plaintiffs CEPA claim in Count II of Plaintiff's Complaint is granted.
V. Common Law Wrongful Discharge
Defendants move to dismiss Plaintiffs common law wrongful discharge claim on the basis that this claim merely duplicates Plaintiffs CEPA claim. Defendants direct us towards CEPA's waiver provision. This provision states:
Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law.
N.J.S.A. 34:19-8. Ordinarily, "once a CEPA claim is 'instituted,' any rights or claims for retaliatory discharge . . . are all waived" because "[p]arallel claims based on those rights, privileges and remedies . . . represent multiple or duplicative claims based on retaliatory discharge."Young v. Schering Corp., 660 A.2d 1153, 1160 (N.J.Sup.Ct. 1995). Nevertheless, the New Jersey Supreme Court has recognized that the filing of a time-barred CEPA claim does not preclude a plaintiff's right to bring a common law wrongful discharge claim. Ballinger v. Del. River Port Auth., 800 A.2d 97, 106-07 (N.J.Sup.Ct. 2002) (citing with approval Crusco v. Oakland Care Ctr., Inc., 702 A.2d 1363, 1366 (N.J.Super.Ct. 1997) (holding that filing a time-barred CEPA claim does not also bar a plaintiff's right to subsequently file a common law wrongful discharge claim)). Thus, given our finding above that the statute of limitations has run on Plaintiff's CEPA claim, Plaintiff could have brought forth a wrongful discharge claim pursuant to New Jersey common law.
Plaintiff, however, elected to file a wrongful discharge claim pursuant to Pennsylvania common law. Defendants contends that the CEPA waiver provision operates to bar all common wrongful discharge claims, including apparently claims based on the common law of sister states. To the contrary, a New Jersey statute cannot purport to waive the claims a plaintiff may have under a sister state's laws. Accordingly, Defendants' Motion To Dismiss Count III of Plaintiff's Complaint on the basis that it is waived via Plaintiff's assertion of a CEPA cause of action must be denied.
Upon reviewing the relevant caselaw, it appears that Plaintiff's Pennsylvania common law wrongful discharge claim may fail to state a claim for relief. See Krajsa v. Keypunch, Inc., 622 A.2d 355 (Pa.Super. 1993). Defendants, however, fail to advance this argument, and we are accordingly without power to entertain it at this juncture.
Conclusion
For the aforementioned reasons, Defendants' converted Motion for Summary Judgment is denied with respect to Plaintiff's Title VII federal claim. Defendants' Motion To Dismiss Plaintiff's supplemental state law claims is granted in part and denied in part. An appropriate order follows.