Devine v. Trumbull Corporation

BRIEF in Support re Motion to Dismiss for Failure to State a Claim

W.D. Pa.October 14, 2016

{B2796536.3} IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENSYLVANIA KAREN DEVINE, Plaintiff, v. TRUMBULL CORPORATION, Defendant. No. 2:16-cv-01547-JFC BRIEF IN SUPPORT OF DEFENDANT TRUMBULL CORPORATION’S MOTION TO DISMISS Defendant Trumbull Corporation (“Trumbull” or “Defendant”), by and through its undersigned counsel, files this Brief in Support of its Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). I. INTRODUCTION This case arises out of Plaintiff Karen Devine’s (“Plaintiff’s”) employment as a cement mason for Trumbull. Specifically, Plaintiff’s Complaint alleges that during her tenure she was subjected to sex discrimination, a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964. See Plaintiff’s Complaint 1 (“Compl.”) at ¶¶ 66–78 (asserting: “Sex Discrimination under Title VII” [Count I]; “Retaliation under Title VII” [Count II]; and “Hostile Work Environment under Title VII” [Count III]). The Complaint is flawed for two reasons. First, Plaintiff alleges violations that were not within the scope of her underlying administrative charge, and over which this Court lacks subject 1 The Complaint is attached as “Exhibit B” to Trumbull’s Notice of Removal filed on Friday, October 7, 2016. Dkt. # 1. Case 2:16-cv-01547-JFC Document 6 Filed 10/14/16 Page 1 of 11 {B2796536.3} 2 matter jurisdiction because Plaintiff has failed to exhaust her administrative remedies as to those alleged violations. Second, Plaintiff failed to file her Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the alleged violation, and her Complaint should be dismissed because it is time-barred. For these reasons, the Complaint against Trumbull should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6). II. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND Plaintiff was first hired by Trumbull as a cement mason in July 2005 out of the Local Union 526’s hiring hall. Compl. ¶ 11. She was promoted by Trumbull to lead finisher in 2010. Compl. ¶ 19. She was responsible for smoothing and finishing exposed concrete surfaces on floors, walls, steps, sidewalks, curbs, ramps, highways, and driveways for various construction projects. Compl. ¶ 10. Plaintiff remained in Trumbull’s employ, on a seasonal basis, until 2012. Compl. ¶ 14. Plaintiff alleges Trumbull General Foreman Steve Redmond (“Mr. Redmond”) and other foremen “openly favored male employees” during her time at Trumbull. Compl. ¶ 23. Specifically, she claims she received less pay, was provided with lower quality equipment and gear, and was subjected to a higher standard of performance. Compl. ¶¶ 24-26. In “fall 2008,” Plaintiff was also allegedly sexually assaulted during a non-work-related function by one of Trumbull’s foremen, Tim Shoup (“Mr. Shoup”). Compl. ¶ 27. “In 2010 or 2011,” Trumbull Vice President of Operations Joseph Catena also allegedly made an unwanted sexual advance toward Plaintiff. See Compl. ¶ 32. Then, “[i]n early 2012,” Plaintiff contacted Trumbull EEO and Compliance Officer Jennifer Howe (“Ms. Howe”) to report the fall 2008 incident, request Case 2:16-cv-01547-JFC Document 6 Filed 10/14/16 Page 2 of 11 {B2796536.3} 3 Mr. Shoup be reassigned to a separate crew, and express her remaining complaints regarding perceived differential treatment in the workplace. See Compl. ¶ 36. In March 2012, Plaintiff met with Trumbull President, Area Manager, and Ms. Howe to further discuss her concerns. See Compl. ¶ 38. During the March 2012 meeting, Plaintiff alleges she was informed “Trumbull would not commit to assigning her to a different crew than [Mr.] Shoup,” but Plaintiff also stated she wanted to be recalled to work by Trumbull for the 2012 season. Compl. ¶¶ 39-40. Plaintiff alleges she was subjected to a “concerted” retaliation effort upon her return to work in 2012. Specifically, she claims she was forced to work longer shifts than her male counterparts, left to work alone during the night shift, and did not have adequate access to bathroom facilities on site. Compl. ¶¶ 41-45. Plaintiff’s EEOC charge expressly identified April 30, 2012 as the latest date discrimination took place. See Exhibit A. However, in her Complaint Plaintiff made allegations of discrimination continuing into May and June 2012, which were not contained in the scope of her Charge. Plaintiff’s “final complaint” allegedly was made to Ms. Howe in May 2012 after Mr. Redmond allegedly denied her request for a week of unpaid leave to spend time with her ill mother. Compl. ¶¶ 46-47. On June 2, 2012, Trumbull discharged Plaintiff from a project, and then allegedly never sought to employ her through the hiring hall for any subsequent projects. Compl. ¶¶ 21, 48, 53. According to the Complaint, Plaintiff first submitted an intake questionnaire to the EEOC on January 2, 2013. Compl. ¶ 58. The questionnaire contained Plaintiff’s name, address, and phone number; indicated she had not previously filed a charge with any other agency; listed Trumbull’s name and address; and “alleged that Trumbull had engaged in unlawful sex discrimination and retaliation.” Compl. ¶ 59. Then, on March 10, 2013, Plaintiff “followed-up Case 2:16-cv-01547-JFC Document 6 Filed 10/14/16 Page 3 of 11 {B2796536.3} 4 with the EEOC by letter and confirmed that she wanted the EEOC to move forward with her case.” Compl. ¶ 61. Plaintiff filed a formal Charge on June 10, 2013, 2 but the EEOC also “treated the Questionnaire and March 10, 2013 letter as a Charge of Discrimination.” Compl. ¶¶ 62-63. Plaintiff’s Complaint does not allege that her intake questionnaire contained “[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” See 29 C.F.R. § 1601.12(a). Following the EEOC’s dismissal of Plaintiff’s charge, a writ of summons was served upon Trumbull on or about January 6, 2016, and Plaintiff filed her Complaint for alleged violations of Title VII of the Civil Rights Act of 1964 on September 16, 2016. Dkt. #1. Trumbull removed Plaintiff’s Complaint to this court on the basis of federal question jurisdiction on October 7, 2016. Dkt. #1. III. LEGAL STANDARDS A. Rule 12(b)(1) Subject-matter jurisdiction “refers to ‘the courts’ statutory or constitutional power to adjudicate the case.” N.L.R.B. v. New Vista Nursing & Rehab., 719 F.3d 203, 211 (3d Cir. 2013). The party asserting jurisdiction “bea[rs] the burden of proving that jurisdiction exists.” Castro v. United States Dep’t of Homeland Sec., --- F.3d ----, 2016 WL 4501943, at *4 (3d Cir. Aug. 29, 2016). Title VII’s exhaustion requirement functions as a jurisdictional bar, because failure to exhaust administrative remedies under Title VII precludes relief in federal court. See Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001); Webb v. City of Philadelphia, 562 F.3d 256, 262–63 (3d Cir. 2009) (“the parameters of the civil action in 2 Plaintiff’s June 10, 2013 Charge of Discrimination is attached to Trumbull’s Motion as “Exhibit A.” Case 2:16-cv-01547-JFC Document 6 Filed 10/14/16 Page 4 of 11 {B2796536.3} 5 the district court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination”). B. Rule 12(b)(6) To survive a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6), “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)). Although the court must accept all the allegations in the complaint as true and view reasonable inferences in the light most favorable to the plaintiff, Erickson v. Pardus, 551 U.S. 89, 94 (2007), the determination as to whether a complaint contains a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (citation omitted). On a motion to dismiss, the “issue is not whether a plaintiff will ultimately prevail but whether [she] is entitled to offer evidence” in support of her claims. United States ex rel. Wilkins v. United Health Grp., 659 F.3d 295, 302 (3d Cir. 2011). The 300-day period for filing a charge of discrimination with the EEOC is treated as a statute of limitations, and can form the basis of a motion to dismiss pursuant to Rule 12(b)(6). See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (“We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”). Generally, if the Complaint and incorporated documents show facial noncompliance with the limitations period, conversion to a summary judgment motion is not required. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1–2 (3d Cir. 1994). Case 2:16-cv-01547-JFC Document 6 Filed 10/14/16 Page 5 of 11 {B2796536.3} 6 IV. ARGUMENT A. Plaintiff’s Has Failed to Exhaust Her Administrative Remedies with Respect to Alleged Violations Occurring after April 30, 2012 The “parameters of the civil action” in federal court are defined by the scope of the EEOC charge. Vogel v. Pittsburgh Pub. Sch. Dist., 40 F.Supp.3d 592, 622 (W.D. Pa. 2014) (citations omitted). Although EEOC charges are reviewed liberally, a plaintiff’s claims must “fall fairly within the scope of the prior EEOC complaint.” Kosakoski v. PNC Fin. Servs. Grp., Inc., No. 12-CV-00038, 2013 WL 5377863, at *12 (E.D. Pa. Sept. 26, 2013) (citing Butterbaugh v. Chertoff, 479 F.Supp.2d 485, 497 (W.D. Pa. 2007)). Any allegations based upon discrimination that allegedly occurred after April 30, 2012, are outside this Court’s subject matter jurisdiction and should be dismissed. Anjelino v. New York Times Co., 200 F.3d 73, 93 (3d Cir. 1999) (“[S]uits in the district court are limited to matters of which the EEOC has had notice and a chance, if appropriate, to settle.”). In her Complaint, Plaintiff now alleges that June 2, 2012, is the date of the last act of discrimination, whereas in her charge she alleged that the date was April 30, 2012. Courts have refused to permit plaintiffs to plead different dates than those previously alleged at the administrative stage. See Tillbery v. Kent Island Yacht Club, Inc., 2010 WL 2292499, at *6 n.6 (D. Md. June 4, 2010), aff’d, 461 F. App’x 288 (4th Cir. 2012). In Tillbery, a plaintiff purportedly indicated an incorrect date for the alleged discriminatory act in both her intake questionnaire and her charge before the EEOC. Id. For this reason, the EEOC dismissed Tillbery’s claims as untimely. Id. She then filed a complaint in federal court, editing the dates as originally indicated in her submissions to the EEOC. Although the plaintiff argued her error before the EEOC was “insignificant,” the trial court disagreed, stating “such information notifies Case 2:16-cv-01547-JFC Document 6 Filed 10/14/16 Page 6 of 11 {B2796536.3} 7 the agency of the scope of its investigation, and ultimately [informs] the scope of a plaintiff’s right to file a federal lawsuit.” Id. (citation omitted). Here, Plaintiff’s EEOC charge related only to events occurring between October 2008 and April 2012. See Exhibit A. The charge indicates the latest date of alleged discrimination was on “04-30-2012,” and the narrative provided in the charge does not contain any allegations occurring after that date. Id. Further, Plaintiff’s charge did not discuss:  an alleged unwanted sexual advance toward Plaintiff made by Mr. Catena, cf. Compl. ¶ 32, 3  a retaliatory denial of her May 2012 request for a leave of absence, cf. Compl. ¶ 46,  her complaints made to management in May 2012, cf. Compl. ¶ 47,  her allegedly unlawful discharge on June 2, 2012, cf. Compl. ¶ 48-50, or  any other communications between her and Trumbull management occurring after April 30, 2012. Cf. Compl. ¶ 51–52. Finally, despite the fact plaintiff had at least three opportunities to set forth the temporal scope of her claims before the EEOC – by submitting a January 2, 2013 questionnaire, a March 10, 2013 “follow-up letter,” and a formal June 10, 2013 charge – Plaintiff never amended the last date of alleged discrimination from April 30, 2012. The very purpose of the exhaustion requirement is to “put[ ] the employer on notice that a complaint has been lodged against [it],” Bihler v. Singer Co., 710 F.2d 96, 99 (3rd Cir.1983), and to “afford the EEOC the opportunity to settle disputes through conference, conciliation, and 3 Although this advance allegedly occurred prior to April 30, 2012, it was not alleged in any variation of the Plaintiff’s administrative charge, nor was it investigated by Trumbull or the EEOC at any time. Case 2:16-cv-01547-JFC Document 6 Filed 10/14/16 Page 7 of 11 {B2796536.3} 8 persuasion, avoiding unnecessary action in court.” Antol v. Perry, 82 F.3d 1291, 1296 (3rd Cir. 1996). The scope of the EEOC’s investigation, as informed by Plaintiff’s submissions, could not have addressed Plaintiff’s various claims that are beyond the timeframe covered by Plaintiff’s charge, and the EEOC was not afforded the opportunity to address them. Therefore, this Court is without subject matter jurisdiction to Plaintiff’s claims arising out of events occurring after April 30, 2012, and any such claims should be dismissed. B. Plaintiff’s Charge was Untimely, Meriting Dismissal of her Complaint as Time-Barred Under Title VII, a charge must be filed with the EEOC within 300 days of the alleged discriminatory conduct. Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 469– 70 (3d Cir. 2001) (citing 42 U.S.C. § 2000e–5(e)(1)); Kosakoski, 2013 WL 5377863, at *11. There is no question that Plaintiff’s ultimate June 10, 2013 charge was filed well beyond the statutory limit; 407 days after April 30, 2012. Compl. ¶ 63. Even if this Court counted from the June 2, 2012 date alleged in Plaintiff’s complaint – but not in her EEOC charge – Plaintiff’s charge was filed 374 days from the date after the alleged discriminatory conduct. See id. In lieu of relying on her formal charge, in her Complaint Plaintiff alleges that the filing of her intake questionnaire, along with her submission of a later letter, was sufficient to constitute a charge of discrimination. However, Plaintiff’s intake questionnaire and letter do not meet the requirements of a charge under Federal Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). In the Third Circuit, an employee’s timely submission of an “intake questionnaire” to the EEOC may be considered a “charge” in limited circumstances. See Muldrew v. Joseph McCormick Const. Co., No. CIV.A. 14-27, 2014 WL 3890336, at *3–4 (W.D. Pa. Aug. 8, 2014). Courts in the Third Circuit may accept a timely-filed questionnaire as a Title VII charge where the two “Holowecki requirements” are met, because the questionnaire: (1) can be “reasonably Case 2:16-cv-01547-JFC Document 6 Filed 10/14/16 Page 8 of 11 {B2796536.3} 9 construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee,” and (2) contains all of the factual information required by the EEOC regulations. See id., (citing Holowecki, 552 U.S. at 402; Hildebrand, 757 F.3d at 113. Here, however, the Holowecki requirements were not met within the 300-day statutory limit for Plaintiff to file her charge. Plaintiff’s intake questionnaire did not alone meet the first Holowecki requirement because it did not request “the agency to take remedial action to protect” her rights or to settle this matter. Compl. ¶ 59. Rather, this requirement was not even potentially met until Plaintiff’s transmission of her March 10, 2013 letter, which has not been provided and is not attached to the Complaint. In fact, the Complaint alleges the EEOC treated the questionnaire and the letter (not, the questionnaire alone) as Plaintiff’s charge. Compl. ¶ 62. This combination of submissions was not completed until 315 days after April 30, 2012. See Compl. ¶¶ 61-63. Additionally, Plaintiff’s intake questionnaire did not meet the second Holowecki requirement because it did not contain all of the factual information required by the regulations. See Muldrew, 2014 WL 3890336, at *3. Although the questionnaire allegedly contained the parties’ names and addresses, the governing EEOC regulation also requires Plaintiff’s charge to provide: “A clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” 29 C.F.R. § 1601.12(a). Plaintiff’s questionnaire merely alleged “that Trumbull had engaged in unlawful sex discrimination and retaliation.” Compl. ¶ 59. This legal conclusion does not constitute a “statement of the facts, including pertinent dates.” Thus, there is no basis to conclude Plaintiff’s questionnaire and March 10, 2013 letter together constituted a “charge.” See Muldrew, 2014 WL 3890336, at *5 (quoting Early v. Bankers Life and Cas. Co., 959 F.2d 75, 80–81 (7th Cir. 1992) (“To treat Intake Case 2:16-cv-01547-JFC Document 6 Filed 10/14/16 Page 9 of 11 {B2796536.3} 10 Questionnaires willy-nilly as charges would be to dispense with the requirement of notification of the prospective defendant.”)). Plaintiff’s questionnaire fails to meet both Holowecki requirements, and her formal charge was not filed until well beyond Title VII’s 300-day limit. As Plaintiff did not file a charge within 300 days of the alleged discriminatory conduct, her Complaint should be dismissed as time-barred. See Hildebrand v. Allegheny Cty., 757 F.3d 99, 113 (3d Cir. 2014), cert. denied sub nom. Hildebrand v. Allegheny Cty., Pa., 135 S. Ct. 1398 (2015)). V. CONCLUSION For the reasons set forth, Defendant Trumbull Corporation respectfully requests this Court dismiss Plaintiff Karen Devine’s Complaint. Date: October 14, 2016 Respectfully submitted, BABST, CALLAND, CLEMENTS AND ZOMNIR, P.C. By: /s/ Molly E. Meacham Molly E. Meacham, Esq. PA ID No. 318272 Stephen A. Antonelli, Esq. PA ID No. 202133 BABST, CALLAND, CLEMENTS AND ZOMNIR, P.C. Two Gateway Center, 6th Floor 603 Stanwix St. Pittsburgh, PA 15222 (412) 394-5614 Firm PA ID No. 812 Case 2:16-cv-01547-JFC Document 6 Filed 10/14/16 Page 10 of 11 {B2796536.3} CERTIFICATE OF SERVICE I hereby certify that on October 14, 2016, a true and correct copy of the foregoing was served upon all counsel of record via the Court’s CM/ECF system. /s/ Molly E. Meacham Case 2:16-cv-01547-JFC Document 6 Filed 10/14/16 Page 11 of 11