Opinion
No. 02-8482
February 28, 2003
MEMORANDUM AND ORDER
Plaintiff Karen Gokay ("Gokay") asserts claims under Title VII of the Civil Rights Act of 1964, 42. U.S.C. § 2000e et seq. against her former employer, the Pennridge School District (the "District"); the Equal Pay Act, 29 U.S.C. § 206(d) against the District and District Superintendent Robert Kish ("Kish"); and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S.A. § 951 et seq. against both defendants. All of Gokay's claims stem from her allegations that the District, and Kish as its superintendent, refused her salary and salary increases that would have been in parity with those of her male colleagues with similar skills, experience and responsibility. The defendants move to dismiss counts I and III of plaintiff's complaint, which allege the Title VII claim against the District and the PHRA claim against both defendants, on the basis that they fail to state a cause of action. Specifically, the defendants argue that Gokay failed to comply with Title VII's requirement that a civil action be filed within ninety days of the receipt of notice of a final determination from the Equal Opportunity Employment Commission (EEOC) and that because Gokay did not include Kish as a party in her PHRA charge, she did not exhaust her administrative remedies as against him and the statute of limitations has run on her claim against him. We deny the defendants' motion to dismiss in its entirety.
Defendant Kish also correctly contends that individual employees cannot be held liable under Title VII. Sheridan v. E.I. Dupont De Nemours, 100 F.3d 1061, 1077-78 (3d. Cir. 1996). However, Gokay did not include Kish in her Title VII claim for precisely this reason. Thus, Kish's argument, while legally accurate, is irrelevant.
I. STATEMENT OF JURISDICTION
We have jurisdiction to hear claims alleging violations of Title VII and the Equal Pay Act under our federal question jurisdiction, 28 U.S.C. § 1331. The plaintiff's state law PHRA claims arise out of the same transaction and occurrence, and we have jurisdiction to hear them under 28 U.S.C. § 1367(a).
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint in whole or in part "for failure to state a claim upon which relief can be granted." In reviewing a motion to dismiss under Rule 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). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); D.P. Enterprises v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984).
III. FACTUAL BACKGROUND
Gokay was hired by the District in 1996 as Director of Human Resources and legal counsel. In May, 1998, Kish acknowledged in a memorandum to the District's Board of Directors that both Gokay and a male colleague, Denis McCall ("McCall"), with similar skills and experience in a comparable position were under-compensated. Both Gokay and McCall were given immediate $3,000 raises, but only McCall was allowed to renegotiate his contract early. The District awarded McCall an immediate $10,000 salary increase, to $89,500, and guaranteed future salary increases. As part of the process of reviewing McCall's requested salary, the District, through Kish, requested Gokay to conduct a salary survey to determine the average compensation for positions similar to hers and McCall's in the geographic area. This survey revealed that the average salary for Gokay's position was $88,033; Gokay was being paid only $73,380 at the time, and the District's own target salary for her position was nearly fifteen thousand dollars higher.
Kish recommended to the Board of Directors that Gokay be given a $3,335 raise for the 1999-2000 school year. Including a stipend for her legal education, Gokay eventually received $78,015 that year, still some $10,000 less than McCall. Kish refused to allow Gokay to address the school board about the lack of salary parity between her and McCall, and informed her that at least two Board members did not approve of the idea of a woman earning as much as or more than a man. Gokay resigned her position in October 1999. The District hired George Crawford to replace her and paid him an annual pro-rated salary of $86,500, approximately $8,000 more than it had paid Gokay to perform the same duties.
Gokay filed administrative complaints with the EEOC and the Pennsylvania Human Rights Commission (PHRC) on January 27, 2000. On May 3, 2001, the EEOC issued a determination that found the District had violated Title VII when it awarded greater salary increases and a greater salary to McCall than it did to Gokay. The EEOC attempted to conciliate its charge, but failed to do so, and issued a Notice of Conciliation Failure on September 6, 2001 notifying both parties of this determination. This letter states, in relevant part,
[T]he case has been referred to our Legal Unit for possible litigation. You will be informed of the EEOC's decision in this matter. If the EEOC decides to bring a civil action, on behalf of the Charging Party, the Charging Party will have the right to seek to intervene in such an action. If the EEOC decides that it will not bring a civil action based on this charge, the Charging Party will be issued a Notice of Right to Sue, which will entitle the Charging Party to sue the Respondent on her own behalf.
(Defendants' Motion to Dismiss, Exh. 3).
Gokay attempted, through counsel, to obtain the right-to-sue letter referenced in the EEOC's Notice of Conciliation Failure. Her counsel wrote the EEOC on October 9, 2001, February 1, 2002 and July 26, 2002. Her counsel also phoned the EEOC several times and, after speaking with a supervisor there, was informed that her charge had been referred to the Department of Justice, from which a right-to-sue letter would have to issue. The EEOC has never issued a right-to-sue letter.
Kish was not a named party in the PHRC administrative complaint. However, he is the highest-ranking representative of the District and was mentioned by name within the body of the complaint. Indeed, the EEOC notice of determination mentions that Kish was questioned by the Commission with regard to Gokay's Title VII complaint.
Having decided that no right-to-sue letter would be forthcoming, and believing that she had diligently pursued one, on November 15, 2002, Gokay filed this action. Defendants moved to dismiss Counts I and III of the complaint on January 21, 2003. Presently before us are the defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), filed January 21, 2003, an accompanying brief in support thereof and Plaintiff Karen Gokay's Response to Defendants' Motion to Dismiss, filed February 19, 2003.
The defendants filed four exhibits with their motion: the plaintiff's complaint (exhibit 1), the EEOC's May 7, 2001 Determination letter (exhibit 2), the EEOC's September 6, 2001 Notice of Conciliation Failure (exhibit 3) and the PHRC's September 28, 2001 right-to-sue letter (exhibit 4). We may consider these exhibits in deciding this motion to dismiss because they are indisputedly authentic and the plaintiff's claims are based upon them. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d. Cir. 1993).
IV. DISCUSSION
Title VII requires that an individual file her civil action in federal court within ninety days after receipt of notice from the EEOC that it has dismissed the administrative charge, has not entered into a conciliation agreement, or has decided not to file a civil action on behalf of the charging party. 42 U.S.C. § 2000e-5(f)(1). A complainant who fails to file within this ninety day period may forfeit her right to sue unless she can demonstrate some equitable reason for her failure to do so. Mosel v. Hills Dep't Store, Inc., 789 F.2d 251, 253 (3d Cir. 1986). In this case, the defendants contend that the EEOC's May 3, 2001 Determination letter or, in the alternative, the EEOC's September 4, 2001 Notice of Conciliation Failure, triggered the start of the plaintiff's ninety day window in which to file her civil action and that she did not file within the window. Neither of these contentions are tenable.
First, the ninety day period in which a complainant must file begins to run when she receives notice of the EEOC's final decision, which usually occurs when she receives her right-to-sue letter. Mosel, 789 F.2d at 252. This is because, before a complainant can be said to have exhausted her administrative remedies, she must receive notice of a final agency action. Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465, 471 (3d Cir. 2001). Indeed, "the statute is clear that a dismissal by the EEOC followed by notice to the person aggrieved are the two events that together start the statute of limitations period." Ebbert v. Daimler Chrysler, No. 02-1503, 2003 WL 252102 (3d Cir. Feb. 4, 2003). Clear notification that the ninety day period has begun to run is required for the communication to function as proper notice to the plaintiff. Id.
The defendants misquote the Mosel opinion as stating that the ninety day period usually commences when the complainant receives a determination letter. Def. Mot. at 6. This is a flatly inaccurate quote; Mosel states that the period "usually [begins] on the date he receives a right-to-sue letter". 789 F.2d at 252 (emphasis added). The defendants are warned in the strongest terms that any further mischaracterization of precedential authority will be met with sanctions.
The defendants cite the district court opinion in Ebbert, 192 F. Supp.2d 303, in support of their position. Def. Mot. at 6. It was disingenuous not to append a notation to this citation to the effect that the very point at issue in the case was under review by the Third Circuit at the time the defendants' brief was written. It was also disingenuous for the defendants to quote Ebbert's quotation of the citation in McCullough v. CSX Transp. R.R. Co., 1995 WL 141494 (E.D.Pa. 1995), to Mosel, which erroneously characterized Mosel as standing for the proposition that notice sufficient to trigger the start of the ninety day window usually occurs upon receipt of an EEOC determination letter. Compare McCullough, 1995 WL 141494, at *2 with Mosel, 789 F.2d at 252. Defendants are admonished that it is improper to cite sources with internal citations without checking the accuracy of those internal citations.
It is clear that neither the May 3, 2001 determination letter nor the September 4, 2001 Notice of Conciliation Failure were the functional equivalent of a right-to-sue letter. Neither letter made clear that the EEOC had dismissed the charge and decided not to pursue its own action, and neither letter made clear that the ninety day period in which to file had commenced. Neither letter constituted a notice of final agency action. Burgh, 251 F.3d at 471. Indeed, the May 3, 2001 letter specifically stated that the EEOC was continuing its participation in the plaintiff's attempts to seek redress in that it invited both parties to engage in conciliation. Def. Mot. Exh. 2.
It is ludicrous to think that the September 4, 2001 letter, which specifically states that another right-to-sue letter will be forthcoming, if the EEOC decides not to file a law suit, constituted sufficient notice the plaintiff that she now had the right to sue on her own. See Def. Mot. Exh. 3. Indeed, the letter states that Gokay's complaint had been referred to the Department of Justice for possible litigation. Id. It is apparent that the EEOC had not yet dismissed Gokay's case and was continuing to work on it. This Notice of Conciliation Failure was not a notice of final agency action and did not, therefore, trigger the beginning of the ninety day clock.
We also reject the defendants' contention, made in a footnote, that the PHRC's letter closing Gokay's case was sufficient to function as a right-to-sue letter in her federal action. We are aware of no case in this circuit holding that the closure of a state law administrative case by a state agency triggers the federal Title VII limitations period. Cases from other circuits and districts suggest that the exclusive mechanism for triggering the ninety day federal filing period is a right-to-sue letter (or its equivalent) from the EEOC. Vielma v. Eureka, 218 F.3d 458, 466-68 (5th Cir. 2000) (collecting cases). The Third Circuit has held that the fact that the PHRA allows a complainant to file an action if the PHRC has not closed the case after one year, but does not require the plaintiff to file until two years have elapsed, suggests that the agency's purpose is to foster conciliation and adjudication rather than to cut short a complainant's rights. See Burgh, 251 F.3d at 476. This suggests to us that the appropriate course to follow is to hold that the PHRC's issuance of notification that the plaintiff's case was closed did not trigger the start of the ninety day period in which to file her federal Title VII complaint. The only effect of the PHRC's notice closing the case was to trigger the start of the two year statute of limitations in which Gokay was required to file her state PHRA action. See 43 Pa.C.S. § 962(c)(2). Gokay filed her complaint approximately fourteen months after receiving the PHRC's September 26, 2001 letter, well within the two year statute of limitations.
Given that the key question is whether the communication alleged to be sufficient to trigger the ninety day clock provided actual notice that the clock had begun to run, Ebbert, 2003 WL 252102, it is impossible to think that the PHRC's September 26, 2001 letter, which makes no mention of Gokay's EEOC complaint, let alone the ninety day clock, could be the equivalent of an EEOC right-to-sue letter.
The defendants' grounds for dismissing the PHRA claim as against Kish have no more merit than their contentions with regard to the Title VII action against the District. Kish objects that because he was not a named party in Gokay's PHRA complaint, the complaint is time-barred and unexhausted as to him. We disagree.
A plaintiff may commence suit "against defendants named in the body but not the caption of the administrative charge; such defendants have received every indication that their conduct was being formally reviewed." Diep v. Southwark Metal Manufacturing Co., No. 006136, 2001 WL 283146, at *3 (E.D.Pa. March 20, 2002) citing Carter v. Philadelphia Stock Exch. Stock Clearing Co., No. 99-2455, 1999 U.S. Dist. LEXIS 13660, at *11 (E.D.Pa. Aug 26, 1999) (quoting Dreisbach v. Cummins Diesel Engines, Inc., 848 F. Supp. 593, 596 (E.D.Pa. 1994) (quoting Kinnally v. Bell of Pa., 748 F. Supp. 1136, 1140 (E.D.Pa. 1990))). In this case, the EEOC's determination letter states that Kish was among those interviewed and investigated. (Def. Mot. Exh. 2). The fact that he was not named in the caption of Gokay's charge does not preclude Gokay from naming him in this action because he was named in the body of that charge, clearly knew his conduct was under review, and was aware of the need for conciliation given the plaintiff's repeated efforts to engage his aid. Glickstein v. Neshaminy Sch. Dist., No. 96-6236, 1999 WL 58578, at *6 (E.D.Pa. Jan. 26, 1999). Because we deem Kish properly to have been included in the complaint, the plaintiff's PHRA action against him is neither time-barred nor unexhausted.
With regard to Title VII complaints, the Third Circuit has said that the jurisdictional requirement that only parties named in the charge may be sued in federal court must be construed liberally in favor of plaintiffs so as to prevent the statute's substantive policies from being thwarted. Glus v. G.C. Murphy Co., 562 F.2d 880, 887-88 (Glus I). In Glus II, the court re-affirmed its enumeration of four relevant factors, to be evaluated in light of the statutory purposes of Title VII and the interests of both parties, to aid in the decision of whether a party not named in the charge may nevertheless be sued. Glus v. G.C. Murphy Co., 629 F.2d 248, 251 (3d Cir. 1980), vacated on other grounds, 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 (1981). These factors are: (1) whether the role of the unnamed party could, through reasonable effort by the complainant, be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interests of a named party are so similar to the unnamed party that for purposes of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; (3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; and (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Id. It it out of these factors that the rule has developed that, where an individual is not named in the caption of the administrative complaint, but is named in the body of the complaint, an action may be maintained against them. Glickstein v. Neshaminy Sch. Dist., No. 96-6236, 1999 WL 58578, at *6 (E.D.Pa. Jan. 26, 1999).
V. CONCLUSION
The EEOC never provided the equivalent of a right-to-sue letter to the plaintiff. Gokay's Title VII action is therefore not time-barred. Her PHRA action against KISH is similarly neither time-barred nor unexhausted because he was named in the body of the complaint and was aware that his conduct was under review. We therefore deny the defendants' motion to dismiss in all respects. An appropriate order follows.
ORDER
AND NOW, this 28th day of February, 2003, upon consideration of the defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), filed January 21, 2003, and Plaintiff Karen Gokay's Response to Defendants' Motion to Dismiss, filed February 19, 2003, it is hereby ORDERED that the defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure is DENIED.