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requiring PFPO claims to be submitted to the PHRC
Summary of this case from Rippy v. Pub. Health Mgmt. Corp.Opinion
CIVIL ACTION NO. 18-4630
06-27-2019
KERRY RIZZOTTO, Plaintiffs, v. QUAD LEARNING, INC., LEROY PINGHO, LEIGH MILLER, ALYSON KRAWCHUCK AND NICK GEREMIA Defendants.
MEMORANDUM OPINION
Plaintiff Kerry Rizzotto bring this suit against her former employer, Defendant Quad Learning, Inc. ("Quad"), and several individuals employed at Quad (collectively "Individual Defendants"), alleging Quad's termination of her employment violated various federal, state, and local non-discrimination statutes. Specifically, Plaintiff brings the following eight claims against all Defendants: (1) violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq. ("ADEA"); (2) violation of the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f)(1) ("OWBPA"); (3) age discrimination in violation of the Pennsylvania Human Relations Act, 43 Pa. C.S.A. §§ 951, et seq. ("PHRA"); (4) retaliation in violation of the PHRA, id. at § 955(d); (5) aiding and abetting discrimination in violation of the PHRA, id. at § 955(e); (6) age discrimination in violation of the Philadelphia Fair Practices Ordinance, Phila. Code § 9-1103 ("PFPO"); (7) retaliation in violation of the PFPO, id. at § 9-1103(1)(g); and, (8) aiding and abetting discrimination in violation of the PFPO, id. at § 9-1103(1)(h). Now pending is Defendants' motion to dismiss the Complaint for failure to state a claim, which will be granted in part and denied in part for the following reasons.
I. LEGAL STANDARD
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The district court must "construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). "[U]nder Rule 12(b)(6), the defendant has the burden of showing no claim has been stated." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
For the reasons discussed in infra Section III.A., the following facts are taken from the Complaint only.
Plaintiff is a 49-year-old New Jersey resident. In 2016, she took a job in Philadelphia as an Associate Program Director for Quad, a Washington, D.C. corporation that specializes in international enrollment management. For the period relevant here, the Individual Defendants—LeRoy Pingho, Leigh Miller, Alyson Krawchuck, and Nick Geremia—were also Quad employees: Pingho was the Chief Executive Officer, Miller was the Senior Vice President for International Operations and Sales, Krawchuck was Plaintiff's manager, and Geremia was another Associate Program Director.
In August 2017, Plaintiff met with the Individual Defendants, who informed her that Geremia had been promoted to a new supervisory role. Plaintiff was never advised that there was a job opening for the position. Moreover, Quad promoted Geremia over Plaintiff, even though he lacked experience in the field and was less qualified for the position.
Throughout the Complaint, Plaintiff avers generally that "defendants" did this or "defendants" stated that, without identifying to which of the Individual Defendants she is referring For example, she alleges: "On or about the end of August 2017, a meeting by [sic] was held between the plaintiff and the defendants. At that meeting defendants stated to Plaintiff that she was to report to defendant Geremia who had been promoted as her supervisor." Construed in the light most favorable to Plaintiff, the Court understands allegations concerning "defendants" to refer to all of the Individual Defendants.
When Plaintiff raised the issue of Geremia's promotion with the Individual Defendants, they threatened, ridiculed, berated, and yelled at her. The Individual Defendants also excluded Plaintiff from trainings, employee events, and vital meetings. As a result of Individual Defendants' conduct, Plaintiff felt humiliated, embarrassed, and emotionally distressed. On February 7, 2017, in an email to all Quad employees, Krawchuck informed Plaintiff that she had been terminated.
On June 25, 2018, Plaintiff dual-filed charges of work place discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"). On August 5, 2018, the EEOC concluded its investigation and issued Plaintiff a Right-to-Sue Letter, which, consistent with the ADEA, provided Plaintiff ninety days to file a lawsuit on her federal claim. Plaintiff duly filed this suit on October 24, 2018.
III. DISCUSSION
Defendants move to dismiss Plaintiff's claims on a host of grounds, specifically that she: (1) released Defendant from liability; (2) failed to exhaust her administrative remedies for her PHRA and PFPO claims; (3) may not maintain claims under the PHRA and PFPO against the Individual Defendants; (4) is not entitled to punitive damages on her ADEA and PHRA claims; and, (5) is not entitled to compensatory damages for pain and suffering on her ADEA claim. Defendant's arguments will be addressed in turn.
Defendants also move to dismiss Plaintiff's claims on the ground that she cannot maintain individual claims under the ADEA and that the OWBPA does not provide a private cause of action. Plaintiff concedes these grounds for dismissal, and, accordingly, Count I will be dismissed as to the Individual Defendants and Count II will be dismissed in its entirety. See Hill v Borough of Kutztown, 455 F.3d 225, 246 n.29 (3d Cir. 2006) ("[T]he ADEA does not provide for individual liability"); Welch v Maritrans Inc., 2001 WL 73112, at *8 (E.D. Pa. Jan. 25, 2001) ("[T]he OWBPA does not, by itself, establish a claim under the ADEA. . . . [T]he 'OWBPA simply determines whether an employee has, as a matter of law, waived the right to bring a separate and distinct ADEA claim.'") (quoting Whitehead v Okla. Gas & Elec Co , 187 F.3d 1184, 1191 (10th Cir 1999)).
A. Release
Defendants assert that Plaintiff's claims are barred by the "Separation and Release of Claims Agreement" (the "Release") purportedly executed by Plaintiff upon her termination from Quad, which Defendants have attached to their motion to dismiss. Defendants' argument is unavailing, however, as the Court cannot consider the Release at this stage of the proceedings.
When considering a motion to dismiss a court "may not consider matters extraneous to the pleadings." U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). A limited exception to this general rule, however, is that "a document integral to or explicitly relied upon in the complaint may be considered." Id. Here, the Release does not fall within the ambit of that exception because nowhere in the Complaint does Plaintiff cite or refer to the Release. Nor is the Release integral to the Complaint, as her claims are not "based upon" the document. Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 273 (3d Cir. 2016). Rather, Plaintiff's discrimination claims are premised on her treatment in the work place and eventual termination, not a document that purportedly set forth the parties' rights after that termination. Id. at 274 ("[The court] cannot say that the [document] was integral to [plaintiff's] claims. It is integral only to the Defendants' attack on those claims."); New Legion Co., Inc. v. Thandi, 2018 WL 2121523, at *6 (E.D. Pa. May 8, 2018) (finding "release purportedly executed between the parties" and "attached to the[] motion to dismiss" could not be considered because defendants "fail[ed] to establish that" the claims were "based upon . . . the release" ). Thus, the Release can not be invoked to bar Plaintiff's claims at this time.
A court may also consider exhibits attached to the complaint and matters of public record, see Hartig Drug Co. Inc v Senju Pharm Co , 836 F.3d 261, 268 (3d Cir. 2016), but those exceptions do not apply here as the Release was not attached to the Complaint and is not a matter of public record.
B. Exhaustion
Defendants next argue that Plaintiff's PHRA and PFPO claims are barred because she failed to exhaust her state administrative remedies. Claims brought pursuant to the PHRA and PFPO are subject to exhaustion, "requir[ing] that [PHRA claims] be brought first to an administrative agency, the PHRC," Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 471 (3d Cir. 2001) (citing Clay v. Advanced Comput. Applications, Inc , 559 A.2d 917, 920 (Pa. 1989)), and PFPO claims be submitted to "either the Philadelphia Commission or the PHRC," Richards v. Foulke Assocs., Inc., 151 F. Supp.2d 610, 616 (E.D. Pa. 2001); see also Marriott Corp. v. Alexander, 799 A.2d 205, 208 (Pa. Commw. 2002). Under Pennsylvania law, the administrative agency "has exclusive jurisdiction over the claim for a period of one year in order to investigate and, if possible, conciliate the matter," meaning "[a] complainant may not file an action in court for [that] period." Burgh, 251 F.3d at 471; Clay, 559 A.2d at 921. If the agency does not resolve the claims within one year, then the complainant may pursue another course, including initiating a judicial action. Burgh, 351 F.3d at 471.
Here, Plaintiff dual-filed charges with the EEOC and PHRC on June 25, 2018, satisfying the PHRA's filing requirement. Lukus v. Westinghouse Elec. Corp., 419 A.2d 431, 452-53 (Pa. Super. 1980) (holding that, under the EEOC's work-sharing agreement with the PHRC, the PHRA's filing requirement is satisfied when the EEOC transmits the claim to the PHRC). On August 5, 2018, the EEOC concluded its investigation and issued Plaintiff a Right-to-Sue Letter, requiring Plaintiff to file suit within ninety days or else forfeit her right to sue on the ADEA claim. Plaintiff duly initiated this suit on October 24, 2018, within the ninety days but before the expiration of the state agency's one-year of exclusive jurisdiction. Thus, Plaintiff failed to exhaust her administrative remedies. See id. at 454 ("[I]nvocation of the procedures set forth in the PHRA entails more than the filing of a complaint; it includes the good faith use of the procedures provided for disposition of the complaint.").
While a court in this District reached a contrary result in Simon v IPS-Integrated Project Servs , LLC, 2018 WL 3585137 (E.D. Pa. July 26, 2018), the Court finds the reasoning there unpersuasive. The facts of that case are nearly identical to the one at bar: plaintiff dual-filed claims with the EEOC and PHRC; the EEOC concluded its investigation and issued the plaintiff a right-to-sue letter, requiring the plaintiff to file suit within ninety days or else forfeit the right to sue on the federal claim; plaintiff initiated her suit within the ninety days, but before the expiration of the PHRC's one-year of exclusive jurisdiction Id. at *3-4. The Simon court, however, found the PHRA claim unexhausted based on the EEOC's work-sharing agreement with the PHRC. According to the Simon court, when "a claim . . . is filed first with the EEOC . . Pennsylvania waives its statutory right to initially process [the] claim," such that "the agreement operates to 'terminate' the PHRC proceedings with respect to those complaints that are filed first with the EEOC." Id at *3 (quoting Woodson v Scott Paper Co , 109 F.3d 913, 926 (3d Cir. 1997)). The Simon court concluded that the exhaustion requirement of the PHRA was therefore satisfied where a plaintiff dual-filed with the EEOC and the PHRC, and the federal agency resolved the matter. Id The Simon court's conclusion, however, is premised on a misreading of the work-sharing agreement. As the Third Circuit explained in Woodson, "the agreement between the EEOC and the PHRC is relevant only to the issue of whether a plaintiff has satisfied the administrative exhaustion requirements of the federal anti-discrimination statutes." 109 F.3d at 926 The agreement has no bearing on the administrative requirements set forth in the PHRA, which is ultimately a "state law issue." Id at 927 And, indeed, in Fye v Central Transportation Inc , 409 A 2d 2 (Pa. 1979), the Pennsylvania Supreme Court held that compliance with the EEOC's administrative procedures does not satisfy the administrative requirements of the PHRA. Id. at 5 ("If the General Assembly wished to permit the substitution of agencies in its legislative scheme, it could easily have provided for that result. It declined to do so and it is beyond our powers to ignore that judgment.") Thus, nothing about the work-sharing agreement displaces the PHRC's exclusive one-year jurisdiction over PHRA claims nor the requirement that a complainant make good faith use of the PHRC's procedures. Lukus, 419 A.2d at 452-54.
As this case illustrates, however, complying with both the federal and state exhaustion requirements puts claimants in a bind where, as here, the EEOC issued a right-to-sue letter more than ninety days before the end of the PHRA's period of exclusive jurisdiction. In such circumstances, a claimant cannot join the federal and state law claims in the same action, even when those claims are premised on the same conduct. Accordingly, "[c]ourts in the Third Circuit have adopted a more flexible approach to PHRA exhaustion by permitting plaintiffs to maintain PHRA claims if the period of exhaustion expires during the pendency of litigation or if plaintiff files an amended complaint after the period of exhaustion." Eldridge v. Municipality of Norristown, 828 F. Supp.2d 746, 758 (E.D. Pa. 2011), aff'd, 514 F. App'x 187 (3d Cir. 2013); Rosetsky v. Nat'l Bd. of Med. Examiners of U.S., Inc., 350 F. App'x 698, 703 (3d Cir. 2009) (noting that the district court could allow the plaintiff to amend her complaint when the PHRC's one-year period had expired during litigation); Wardlaw v City of Philadelphia, 2011 WL 1044936, at *3 n.45 (E.D. Pa. Mar. 21, 2011) (collecting cases where courts permitted plaintiff to amend the complaint); Santi v Bus. Records Mgmt., LLC, 2010 WL 3120047, at *6 (W.D. Pa. Aug. 9, 2010) (same). Here, the PHRC's period of exclusive jurisdiction over Plaintiff's PHRA and PFPO claims expired during the course of litigation—on June 26, 2019. "Rather than dismissing a plaintiff's claim on a curable, technical defect," Wardlaw, 2011 WL 1044936, at *3, however, the Court will dismiss Plaintiffs PHRA and PFPO claims without prejudice and grant her leave to file an amended complaint.
Because Plaintiff's PHRA and PFPO claims will be dismissed without prejudice, the Court need not address Defendants' remaining arguments with regards to those claims- namely, that Plaintiff cannot bring PHRA and PFPO claims against the Individual Defendants, and that Plaintiff cannot recover punitive damages on her PHRA claims.
C. ADEA Damages
Finally, Defendants move to dismiss Plaintiff's requests for punitive damages and compensatory damages for pain and suffering on her ADEA claim. Because the ADEA precludes Plaintiff from recovering such relief, Defendant's motion to dismiss those portions of Plaintiff's ADEA claim will be granted. See Steward v. Sears Roebuck & Co , 312 F. Supp.2d 719, 730 (E.D. Pa. 2004) ("Neither punitive damages nor damages for pain and suffering are recoverable under the ADEA."); Bruno v. W. Elec Co., 829 F.2d 957, 966-67 (10th Cir. 1987) (collecting appeals decisions rejecting claims for punitive damages under ADEA).
An appropriate order follows.
June 27, 2019
BY THE COURT:
/s/ _________
WENDY BEETLESTONE, J.