Moses v. Home Depot Inc. et al

BRIEF in Opposition

D.N.J.January 4, 2017

John Moses 844 Carteret Ave Trenton, NJ 08618 (609)-815-1977 Per Se Pro RlE:C~IEliVED JAN 0 ~ 2017 AT 8:30 M WILLIAM T. WALSH CLERK IN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY JOHN MOSES Plaintiff, vs. HOME DEPOT INC, STORE MANAGER COLLINS POL YW ACZ, ASSISTANT MANAGER LISA WALLACE, ASSISTANT MANAGER. JOHNATHAN DELAIRA AKA JD, HUMAN RESOURCE REP. CINDY, DEPARTMENT HEAD KYLE, DEPARTM~NT HEAD EDWARD, ·DEPARTMENT HEAD JEANETTE AND ALL OTHER JOHN DOES Defendant( s) Case No.: No. 3:16-CV-02400-PGS-DEA Plaintiff's Opposition Motion Motion Returnable: January 4, 2017 PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT FED.R.CIV.P.12 (B)(6) Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 1 of 26 PageID: 483 TABLE OF CONTENTS - PAGE PRELIMINARY STATEMENT ............................................................................. 1 PROCEDURAL HISTORY AND STATEMENT OFFACTS ......................................... 3 A. Background ............................................................................................. 3 B. Present Status of Proceedings ...................................................................... .4 STANDARD OF REVIEW ................................................................................... 5 LEGAL ARGUMENT POINT ONE ....................................................................... 6 PLAINTIFF'S AMENED COMPLAINT MUST NOT BE DISMISSED AS TO THE INDIVIDUAL DEFENDANTS .............................................................................. 6 A. Plaintiffs Has Stated A Legitimate Claims Against Individuals Defendants Under Title VII ......................................................................... 6 B. Plaintiff Has Exhausted His Administrative Remedies Under The PHRA As To The Individual Defendants ................................................... 8 C. Plaintive Has Properly Served The Individual Defendants ...................................... 9 POINT TWO PLAINTIFF VII CLAIMS AGAINST HOME DEPOT DOES ST A TE A CAUSE OF ACTION ........................................................................... 11 A. Plaintiffs Title VII Claims are Timely Filed ................................................... 11 B. Equitable Tolling Does Apply to Plaintiffs Title VII Claims ................................. 12 POINT THREE PLAINTIFF'S RELALIATION UNDER TITLE VII AND THE PHRA (COUNTS TWO AND FIVE) SHOULD NOT BE DISMISSED .................................................................................................. 14 A. Plaintiffs Allegations Relating to Retaliation Should Not Be Stricken .................... 16 POINT FOUR PLAINTIFF'S RELALIATION UNDER TITLE VII AND THE PHRA (COUNTS TWO AND FIVE) SHOULD NOT BE DISMISSED ..................................... 17 POINT FIVE PLAINTIFF'S DEMAND FOR DAMAGES UNDER PHRA AND TITLE VII SHOULD NOT BE DISMISSED .................................................... 19 CONCLUSION ............................................................................................... 19 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 2 of 26 PageID: 484 TABLE OF AUTHORITYS Cases Page(s) 315 F. Supp. 3d 650 ........................................................................................................................ v 515 F.3d 224 (3d Cir.2008) ............................................................................................................ vi 525 F. Supp. 2d 1151 (N.D. Cal. 2007) .......................................................................................... v 55 U.S. (2007) ................................................................................................................................ vi 550 U.S. 544 (2007) ................................................................................................................... vi, 5 588 F.3d 585 (8th Cir. 2009) ......................................................................................................... vi 627 F.3d (9th Cir. 2010) ................................................................................................................ v 655 F.3d 333 (3d Cir. 2011) ........................................................................................................... vi 744 F .2d 1309 (7th Cir. 1984) ....................................................................................................... v 785 F.2d 344{0.C.Cir.1986) ........................................................................................................... v 796 F.2d 769 (5th Cir. 1986) .......................................................................................................... v 847 F.Supp. 1232 ........................................................................................................................ 6, 7 914 F. Supp. 1157 (E.D. Pa. 1996) ................................................................................................. v Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F.Supp.2d 56 (D.D.C.2013) .................................................................................................. 5 Antol v. Perry, 82 F.3d 1291 (3d Cir. 1996) ... ' ............................................................................................. 14, 15 Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868, (2009) ............................................................. 5 Bailey v. Storlazzi, 729 A.2d 1206 (Pa. Super. Ct. 1999) ........................................................................................... 8 Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) .............................................................. 13 Ball v. Abbott Advertising, Inc., 864 F.2d 419 (6th Cir.1988) ...................................................................................................... 11 Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir 1994) .............................................................................................. 7, 17, 18 Browning v. Clinton, 292 F.3d 235 (D.C.Cir.2002) ....................................................................................................... 5 Burgh v. Borough Council of Montrose, 251F.3d465 (3d Cir. 2001) ................................................................................................ 11, 15 California Scents v. Surco Prods., Inc., 406 F.3d 1102 (9th Cir.2005) .................................................................................................... 16 Cautela v. Ohashi Tecnica U.S.A., Inc., 2009 WL 2431090, 2009 U.S. Dist. LEXIS 68662, *10 (S.D. Ohio 2009) ................................ 7 Civ. A. No. 05-2578, 2006WL1147476 ...................................................................................................................... vi ii Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 3 of 26 PageID: 485 Civ. A. No. 09-3981, 2011WL1044936 (E.D. Pa. Mar. 21, 2011) .............................................................................. v Civ. A. No. 13-5709, 2014 WL 4634965 ....................................................................................................................... v Clay v. Howard Univ., 82 F.Supp.3d 426 (D.D.C.2015) .................................................................................................. 5 Delaware Healthcare, Inc. v. MCD Holding Co., 893 F. Supp. 1279 (D. Del.1995) .............................................................................................. 16 Ebbert v. DaimlerChrysler Corp., 319 F.3d 103 .................................................................................................................. 12, 13, 14 Elberson v. Pennsylvania, 396 Fed. Appx. 821 (3d Cir. 2010) ............................................................................................ 15 Elkadrawy v. Vanguard Group, Inc., 584 F.3d 169 (3d Cir. 2009) ...................................................................................................... 11 Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172 (3d Cir. 1999) ...................................................................................................... 11 Franks v. Bowman Transp. Co., 495 F.2d 398 (5th Cir.1974) ................................................................................................ 13, 14 Hamilton v. Rodgers, 791F.2d439 (5th Cir.1986) ........................................................................................................ 6 Hicks v. ABT Associates, Inc., 572 F.2d 960 ................................................................................................................ 8, 9, 16, 17 Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100 (3d Cir. 2009) ...................................................................................................... 18 Jones v. Metropolitan Denver Sewage Disposal District, 537 F.Supp. 966 (D.Colo.1982) .................................................................................................. 7 Kunwar v. Simco, 135 F. Supp. 2d 649 (E.D. Pa. 2001) ........................................................................................... 8 Levendos v. Stem Entertainment, Inc., 909 F.2d 747 (3d Cir.1990) ......................................................................................................... 7 Lewis v. Conners Steel Co., 673 F.2d 1240 (11th Cir.1982) ............................................................................................ 13, 14 Light v. Wolf, 816 F.2d 746 (D.C.Cir.1987) ..................................................................................................... 10 Mann v. Castiel, 681F.3d368 (D.C.Cir.2012) ..................................................................................................... 10 Maupin v. U.S. Dep't of Energy, No. Civ. A. 03-1156 (PLF), 2005 WL 3211883 (D.D.C. Nov. 18, 2005) ................................ 10 Mosel v. Hills Dept. Store, Inc., 789 F. 2d 251 (3d Cir. 1986) ..................................................................................................... 11 No. 09-4285, 2010 WL 2080034 (E.D. Pa. May 19, 2010) .............................................................................. vi Nurse v. United States, 226 F.3d 996(9th Cir.2000) ................................................................................ ~ ...................... 16 Packaging Corp., 706 F. 3d 157· (3d Cir. 2013) ..................................................................................................... 15 iii Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 4 of 26 PageID: 486 Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989) ................................................................................................. 7, 17 Scott Paper Co., 109 F.3d 913 (3d Cir. 1996) .................... ; ................................................................................... 8 Shoemaker v. Metro Info. Serv., 910 F. Supp. 259 (E.D. Va. 1996) ............................................................................... 7, 8, 17, 18 Skirkey v. Eastwind Cmty Corp., 941 F. Supp. ( D.Md.1996) ......................................................................................................... 6 Tillman v. Weaton-Haven Recreation Ass'n Inc., 517 F.2d 1141 .............................................................................................................................. 6 Plaintiff understands, as the Maudlin court recognized, when an employee has already sued a corporate employer under Title VII, an official capacity suit against a supervisor adds nothing to the lit~gation., 2014 WL 1342883, 2014 U.S. Dist. LEXIS 46228 a .................................................................. 7 Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71L.Ed.2d234 (1982) .............................................................. 13 Statutes 29 U.S.C.A. § 630(b) ...................................................................................................................... 6 42 U.S.C § 1983 ...................................................................... ; ............................................... vi, 1, 4 42 U.S.C § 2000(f)(l) .................................................................................................................... vi 42 U.S.C § 2000e ....................................................................................................................... vi, 8 42 U.S.C § 2000e-5 .................................................................................................................. vi, 12 42 U.S.C § 2000e-5(e)(l) ............................................................................................................... vi 42 U.S.C. § 2000e-5(f)(l) ..................................................................................................... 2, 4, 11 42 U.S.C.A. § 12101 ..................................................................................................................... 11 42 U.S.C.A. § 2000e(b) ............................................................................... ; ......................... 6, 8, 17 42 U.S.C.S. § 2000e-5(b) ............................................................................. ; .................................. 8 . 43 Pa. Cons. Stat. § 962 .................................................................................................................. 8 43 Pa. Cons. Stat. §§ 959(h) ......................................................................... ; ................................. 8 U.S.C. § 2000e-5(f)(l) ..................................................................................................................... 2 Rules Fed. R. Civ. P. 15(a)(l)(B) ............................................................................................................. 4 Fed. R. Civ. P. 4(c)(2) .............................................................................. : ...................................... vi Fed. R. Civ. P. 4(h)(l)(A) ............................................................................................................... 9 Fed. R. Civ. P. 4(h)(B) .................................................................................................................... 9 Fed. R. Civ. P. 8 ............................................................................................................................. vi FED.R.CIV.P.12 (B)(6) ............................................................................................................. 1, vi Federal Rule of Civil Procedure 12(b )(5) ..................................................................................... 10 Federal Rule of Civil Procedure 12(f) .......................................................................................... 16 Federal Rule of Civil Procedure 4(m) ....................................................................................... 9, 10 Rule 4 ..................................................................... ; ................................................................ 10,. 11 :.[ iv Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 5 of 26 PageID: 487 Other Authorities Donnelly v. Commonwealth Fin. Sys., No. 07-1881, 2008 U.S. Dist. LEXIS 28604, at *10 (M.D. Pa. Mar. 20, 2008) ............................................. 16 NJV, 2010 U.S. Dist. LEXIS 14966, *4 (N.D. CaL Feb. 22, 2010) .................................................... vi Olschefski v. Red Lion Area Sch. Dist., No. 12-871, 2012 U.S. Dist. LEXIS 170693, at *21(M.D. Pa. Nov. 30, 2012) ............................................ 18 Purvis-Chapman v. Silverstein, No. 14-4252, 2016 U.S. Dist. LEXIS 43324 ................................................................................................... 12 Ringgold v. Nat 'I Maint. Corp. 796 F.2d 769, 770 (5th Cir. 1986) ............................................................................ 2 Josiah - Faeduwour v. Commc 'ns Satellite Corp. 785 F.2b 344, 346 - 47 (D.C. Cir. 1986) .................................................................... 6 Jones v. Madison Serv. Corp. 744 F .2d 1309, 1312 (ih Cir. 1984) ........................................................................ 6 Josiah-Faeduwor v. Commc'ns Satellite Corp 785 F.2d 344, 346-47(D.C.Cir.1986) ....................................................................... 6 Jones v. Madison Serv. Corp. 744 F.2d 1309, 1312 (7th Cir.1984) ........................................................................ 6 Mayer ...... ..... 605 F.3d at 230 ....... ................................................................................ 7 Arizmendi v. Lawson 914 F. Supp. 1157, 1160 (E.D. Pa. 1996) .................................................................. 7 Concha v. Perfecseal, Inc. Civ. A. No. 13-5709, 2014 WL 4634965, at *1 and n.1 (E.D. Pa. Sept. 15, 2014) .................. 7 Tlush v. Mfrs. Res. Ctr. 315 F. Supp. 3d 650, 654 (E.D. Pa. 2002 .................................................................. 7 Wardlaw v. City of Philadelphia Civ. A. No. 09-3981, 2011WL1044936, at *3 (E.D. Pa. Mar. 21, 2011) ............................ 7 Deepakkumar Himatlal Soneji v. Dep't of Homeland Sec. 525 F. Supp. 2d 1151, 1157 (N.D. Cal. 2007) ............................................................. 9 Heb be v. Pliler 627 F.3d 340 (9th Cir. 2010) ................................................................................ 8 v Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 6 of 26 PageID: 488 Lightcap-Steele v. Kids Peace Hosp., Inc., Civ. A. No. 05-2578, 2006 WL 1147476, at *5 and n.2 (E.D. Pa. Apr. 27, 2006) ................... 8 Twombly 55 U.S. at 544 (2007) ......................................................................................... 8 Braden v. Wal-Mart Stores, Inc. 588 F.3d 585, 594 {8th Cir. 2009) .......................................................................... 9 Bell Atlantic Corp. v. Twombly 550 U.S. 544, 563 (2007) ...................................................................................... 9 Yordy v. Astrue No.1:09-cv- 03028-NJV, 2010 U.S. Dist. LEXIS 14966, *4 (N.D. Cal. Feb. 22, 2010) ............. 9 Butt v. United Brotherhood of Carpenters & Joiners of America No. 09--4285, 2010 WL 2080034 (E.D. Pa. May 19, 2010) .......................................... .10 Higgs v. United States. Atty Gen. 655 F.3d 333, 339 (3d Cir. 2011) ........................................................................... 10 Phillips v. County of Allegheny 515 F.3d 224, 236 (3d Cir.2008) ........................................................................... 10 Statues 42 u.s.c § 1983 ............................................................................................... 5 42 U.S.C § 2000e ............................................................................................... 5 42 U.S.C § 2000e-5 ............................................................................................ 5 42 U.S.C § 2000e .. 5(e)(l) ...................................................................................... 5 42 u.s.c § 2000(t)(l) ..................................................................................... 5,6 NJ 10:6 .. 2a ..................................................................................................... 5 NJ 4A:7-3.1 .................................................................................................... 5 Rules Fed. R. Civ. P. 12(b)(6) ...................................................... , ............................... 5 Fed. R. Civ. P. 4(c)(2) ...................................................................................... 5 Fed. R. Civ. P. 8 .............................................................................................. 5 VI Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 7 of 26 PageID: 489 PRELIMINARY STATEMENT Plaintiff John Moses ("Plaintiff' or "John Moses") submits this Memorandum of Law in opposition to Defendant's Motion to Dismiss Counts One, Two, Three and Five of Plaintiffs Amended Complaint filed on October 27, 2016 by Pro Se Plaintiff John Moses ("Plaintiff' or "Moses"). Defendants' motion to dismiss is an ongoing quest to avoid judicial inquiry into them depriving Plaintiff of his federal constitutional rights, due process rights under Title VII and also under the color of state law. Plaintiff was falsely accused of violating a company policy, harassed, retaliated against and discriminated against because of his race 1• This employment discrimination arises out of Plaintiff being a former employee of Home Depot. On April 29, 2016 he instituted a one count Complaint2 (ECF Nol) asserting that Home Depot and seven current and former Home Depot supervisory/managerial employees, Store Manager Collins Polywacz, Assistant Manager Lisa Wallace, Assistant Manager Johnathan Delaira aka JD, Human Resource Representative Cindy, Department Head Kyle, Department Head Edward, Department Head Jeanette ("individual defendants"), discriminated against him on the basis of his race in violation of Title VII of the Civil Rights Act of 1964 ("Title VIr') and 42 U.S.C. § 1983 ("Section 1983") for his May 11, 2015 termination3. Plaintiff filed an Amended Complaint (ECF No 32) on October 27, 20164 omitting the Section 1983 claim and adding: (i) a retaliation claim under Title VII against Home Depot and 1 Defendants all conspired against Plaintiff way back from his pre-employment phase seeking employment from their company. These individuals did not want to hire Plaintiff, so they devised a systematic scheme that would that would keep Plaintiff employment in the pending status, while conveying to him that they was awaiting his background check to come back. Plaintiff picked up on it and reported it to corporate and advised corporate that if they did not step in and hold them accountable for it, he would be suing Home Depot for discriminating against him because of his race, which is black. 2 Plaintiff filed his Claim of discrimination with the EEOC on July 09, once Home Depot gave him a copy of the bogus disciplinary write up his employment was terminated with them for. 3 Plaintiff was terminated for making an inappropriate and disrespectful comment about another associate on the date of 4/18/2015 a date which was one of plaintiffs scheduled three days off. 4 Plaintiff filed his Amended Complaint to correct all the errors in his initial filed 4/29/2015 Title Vll Complaint against Home Depot and All included Defendants. 1 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 8 of 26 PageID: 490 the individual defendants (Count Two); (ii) a Title VII claim for failure to provide a reasonable avenue to complaint against Home Depot and the individual defendants (Count Three); (iii) new discrimination and retaliation claims under the Pennsylvania Human Relations Act against Home Depot and the individual defendants (Counts Four and Five); and (iv) a new individual defendant ''Department Supervisor Alicia. (See Pl's Amended Complaint ("Am. Compl." ECF No. 32). All of Plaintiffs claims must be upheld with his PHRA discrimination claim (Count Four) against Home Depot. Plaintiff followed procedural prerequisite to filing his lawsuit against Defendants for violations of Title VII and PHRC, Plaintiff filed a charge of discrimination asserting the same claims with the Equal Employment Opportunity Commission ("EEOC") and was advised they would also dual file it with the Pennsylvania Human Relations Commission ("PHRC"). Plaintiff also filed his Title VII complaint in federal court within 90 days of being able to gain access to open the emailed Notice of Right to Sue letter from EEOC 5• See 42 U.S.C. § 2000e-5(t)(l). Here Plaintiff filed his Complaint within the 90-day time frame, prescribed by U.S.C. § 2000e-5(t)(l). Plaintiff gained access January 30, 2016 to open the EEOC's emailed Notice of Right to Sue letter dated of October 30, 2015. Then, Plaintiff filled his Complaint on April 29, · 2016, 90 days after receiving his Right-to-Sue letter by email from the EEOC. Plaintiff filed his Complaint in federal court 182 days after the issuance date on the Right-to-Sue notice. Plaintiffs Title VII claims (Counts One, Two, and Three) are not time barred. Plaintiffs Amended Complaint Title II discrimination and retaliation claims against individual defendants must also be upheld as individual liability does exist under Title 11 5 January 30, 2016 was the date Plaintiff was able to gain access of his Right to Sue notice that was emailed to him from EEOC Rep. Shirley Wearne. EEOC Rep. Shirley did warned Plaintiff that just because the email is emailed out today, don't mean you will be able to receive it instantly or have access to it, once out of our hands it is left with your email provider. 2 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 9 of 26 PageID: 491 Also, Plaintiff did exhaust his administrative remedies with the respects to Title 11/PHRA claim of retaliation. On July 9, 2015, Plaintiff filed an EEOC charge of discrimination against Home Depot and Defendants for numerous counts of discrimination in connection with his termination from Home Depot. The EEOC Rep that wrote the charge did not want to listen to Plaintiff not take the names of the individuals, he advised Plaintiff that was not the time to provide he with the name, and give him all the details of the case 6. The EEOC Rep advised Plaintiff that the correct time to add names and all the Charges to the Complaint would be when someone called him from their investigating department7. The EEOC investigating department did not call the Plaintiff; the EEOC just issued Plaintiff a Right to Sue letter. Plaintiff would not purposely have names and the circumstances surrounding Home Depot discriminating against him and do want to give it to EEOC. Plaintiff cooperated with EEOC because he had to get his Charge of discrimination filed with their agency. Therefore, Plaintiff has exhausted his administrative remedies and his PHRA. PROCEDURAL HISTORY AND STATEMENT OF FACTS A. Background Plaintiff was offered a job by Home Depot on March 03, 2015 pending a passing of his drug test and background check. See Exhibit Amended Complaint and attachments. Plaintiffs hiring process was placed in pending status by Home Depot store in Levittown, PA, while misleading Plaintiff to believe that they submitted a request to Quest Dynastic for a drug test and background check, which they purposely only submitted a request for a drug test. See Exhibit See Exhibit Amended Complaint and attachments. After a month of on going back and forth with Store 4163 and getting Home Depot corporate involved, corporate took numerous steps to take Plaintiffs application out of pending. See Exhibit Amended Complaint and attachments. Plaintiff was hired by Home Depot on April 8, 2015 as a sales associate at Store 4163 located in Levittown, Pennsylvania. One month later, on May 11, 2015 Home Depot terminated Plaintiffs 6 The EEOC Rep refuse to take the name and other information that Plaintiff had with him so he could of fully stated how he was being harassed at work. 7 The EEOC never made any attempt to contact Plaintiff about any investigation. 3 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 10 of 26 PageID: 492 employment utilizing a Bogus Disciplinary Report they fabricated while he was on his scheduled three days off. See Exhibit 5 of the Amended Complaint and attachments. On July 9, 2015, Plaintiff filed a Charge of Discrimination with the EEOC, Philadelphia District Office that he was harassed and terminated because of his race 8. See Charge of Discrimination attached to this Opposition Motion. On January 30, 2016 Plaintiff gained access to the Noticed of Right to Sue ("Right to Sue Letter") that was emailed out January 27, 2016. See Exhibit A of the Amended Complaint and attachments B. Present Status of Proceedings On June 3, 2016 pursuant to Rule 12(b)(6), Home Depot moved to dismiss Plaintiffs Title VII discrimination claim as time-barred, stating Plaintiffs claim failed to comply with the procedural requirements of Title II, requiring that he file his Complaint within 90 days after receipt of the EEOC's Right to Sue letter, 42 U.S.C. § 2000e-5(t)(l). (ECF No. 8). Also, Home Depot moved to dismiss Plaintiffs Title VII claim against the individual defendants because no individual liability exists under Title VII. (Id.). Finally, Home Depot moved to dismiss Plaintiffs Section 1983 claim, as it is not a state actor. (Id.). On June 30, 2016, Plaintiff filed an Amended Complaint (ECF No. 14), which the Court ordered stricken because it was not timely filed as of right under Fed. R. Civ. P. 15(a) (1) (B). Plaintiff moved for leave to file an amended complaint. (ECF No. 22). On October 3, 2016, the Court granted Plaintiffs motion, and directed him to file the Amended Complaint by October 14, 2016. (ECF No. 28). Plaintiff notified the court his Amended Complaint was already filed with his Motion for Leave to Amend; the Court permitted the Clerk to file Plaintiffs Amended Complaint9. (ECF No. 31; see also ECF No. 29). On October 27, 2016, Plaintiffs Amended Complaint was filed. (ECF No. 32). In his Amended Complaint, Plaintiff contends that "[ v ]enue is proper in this district because a substantial part of the events or omissions giving rise to this action in regard to all 8 Plaintiff never had any of the individuals listed addresses, nor has Home Depot provided their addresses to Plaintiff to server them with Summons at their place of residence. Home Depot is withholding their address in the hopes of losing liability for their harassment actions toward Plaintiff. 9 Plaintiff notified the court about them already having the copy of the Amended Complaint because he did not want to have two of the same Amended Complaint on Court records giving the Defendant a chance to say Plaintiff was trying to make attempt to change his already filed Amended Complaint. 4 'I Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 11 of 26 PageID: 493 defendants occurred in this district and he has no idea where the all the Defendants reside at, beside their work at." (Am. Compl. if 12)10• STANDARD OF REVIEW "A Rule 12(b) (6) motion tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). "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, 129 S.Ct. 1937, 173 L.Ed.2d 868, (2009) (internal quotation marks and citation omitted). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). Although a plaintiff may survive a Rule 12(b) (6) motion even where "recovery is very remote and unlikely," the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted). Moreover, a pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). If the facts as alleged, which must be taken as true, fail to establish that a plaintiff has stated a claim upon which relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F.Supp.2d 56, 61 (D.D.C.2013); Clay v. Howard Univ., 82 F.Supp.3d 426, 430 (D.D.C.2015). 10 On September 15, 2016, the Court terminated Home Depot's Rule 12(b)(6) motion to dismiss pending the Court's decision on Plaintiff's motion to amend. (ECF No. 26). 5 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 12 of 26 PageID: 494 LEGAL ARGUMENT POINT ONE PLAINTIFF'S AMENDED COMPLAINT MUST NOT BE DISMISSED AS TO THE INDIVIDUAL DEFENDANTS A. Plaintiff ~as Stated A Legitimate Claim Against The Individual Defendants Under Title VII Plaintiffs Amended Complaint alleging discrimination and retaliation claims under Title VII against the individual defendants (Counts One, Two and Three) must be upheld because individual liability does exist under Title VII. Directors or managers can be held be personally liable when they "intentionally cause a corporation to infringe the rights secured by section 1981. Tillman v. Weaton-Haven Recreation Ass'n Inc., 517 F.2d 1141, 1145 (4th Cir. 1975; see also Skirkey v. Eastwind Cmty Corp., 941 F. Supp. 572 ( D.Md.1996) (requiring intentional discrimination in order to establish a Section 1981 violation), modified on other grounds.993 F. Supp. 370 (D.Md.1998) Here defendants are all managers who intentionally fabricated a disciplinary charge against Plaintiff. Defendants knew that Plaintiff could not have possibly committed the offense . listed on the disciplinary charge. Plaintiff was scheduled off that day Defendants stated the Plaintiff committed the infraction listed on the disciplinary charge. The disciplinary charge has all their names on it as witnesses, investigators, and as the person who terminated Plaintiffs employment. In the Third Circuit the test for determining whether person is an agent of employer who can be held liable for discrimination under Title VII or ADEA, is whether agent alleged has participated in decision-making process that forms basis of discrimination. Civil Rights Act of 1964, § 701(b), 42 U.S.C.A. § 2000e(b); Age Discrimination in Employment Act of 1967, § l l(b), 29 U.S.C.A. § 630(b). See Crawford v. West Jersey Health Systems (Voorhees Div.) 847 F.Supp. 1232 Under both Title VII and the ADEA, only employers and their agents can be held liable for discrimination. § 2000e (b) of Title VII; § 630(b) of the ADEA. The test for determining agency under either statute is the same: whether the alleged agent has "participated in the decision-making process that forms the basis of the discrimination." Hamilton v. Rodgers, 791 6 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 13 of 26 PageID: 495 F.2d 439, 443 (5th Cir.1986) (citing Jones v. Metropolitan Denver Sewage Disposal District, 537 F.Supp. 966, 970 (D.Colo.1982)); quoted with approval in Levendos v. Stem Entertainment, Inc., 909 F.2d 747, 757 (3d Cir.1990). The Defendants are all managers, agents for Home Depot and they had interaction or had authority over Plaintiff for the purpose of employment. These Defendants were Plaintiffs employer; they acted as agents by "ma [king] the final decisions regarding employment matters. This court agrees with the reasoning of the Fifth and Ninth Circuits. Holding individual employees, but not small employers, liable under these statutes is patently inconsistent. See Crawford v. West Jersey Health Systems (Voorhees Div.) 847 F.Supp. 1232. Plaintiff understands that this court's position is for.the Plaintiff to go after the employer for discrimination and that is Plaintiff intention here that is why Defendants are listed on the complaint by their names and position. Plaintiffs stated in his Complaint Defendants are agents and savants of Home Depot under Title VII. Plaintiff understands, as the Maudlin court recognized, when an employee has already sued a corporate employer under Title VII, an official capacity suit against a supervisor adds nothing to the litigation. 2014 WL 1342883 at *2-3, 2014 U.S. Dist. LEXIS 46228 at *8. This is because the employer and only the employer can be responsible for any relief the employee obtains, even if under the official capacity theory. Cautela v. Ohashi Tecnica U.S.A., Inc., 2009 WL 2431090, *3-4, 2009 U.S. Dist. LEXIS 68662, * 10 (S.D. Ohio 2009). Defendants behavior as supervisors toward Plaintiff was of belittling, making him feel less than other employees. See Birkbeck v. Marvel Lighting Corp., in the Fourth Circuit, supervisors may be individually liable in Title VII cases where they wield significant control over plaintiffs and their conduct cannot be categorized as a plainly delegable duty. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 n.l (4th Cir 1994) (citing Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989), rev'd in part, affd in relevant part, 900 F.2d 27 (4th Cir. 1990)); see also Shoemaker v. Metro Info. Serv., 910 F. Supp. 259, 263-66 (E.D. Va. 1996) (holding individual supervisors liable under Birkbeck and Paroline ). A supervisor can be qualifying as "employers" under Title VII Shoemaker v. Metro Info. Servs., 910 F. Supp. 259 Quoting "The court then found that supervisors could, indeed, qualify as "employers" under Title VII, if the challenged actions were not delegable. The court 7 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 14 of 26 PageID: 496 found that an agent of an employer could qualify under 42 U.S.C.S. § 2000e (b), and there were not sufficient policy reasons to refuse to impose personal liability on supervisors. Shoemaker v. Metro Information Services, 910 F. Supp. 259 (E.D. Va. 1996) (Jackson, J.), the Court similarly held that individual supervisors are only liable in Title VII cases "where they wield significant control over plaintiffs and their conduct cannot be categorized [** 18] as a plainly delegable duty." Id. at 265. In Shoemaker, plaintiffs alleged that their supervisor committed repeated acts of sexual harassment. Id. at 261.-62. Since the defendant supervisor's actions were clearly not delegable, the Court denied his motion to dismiss. Id. at 266. B. Plaintiff Has Exhausted His Administrative Remedies Under The PHRA As To The Individual Defendants Counts Four and Five of Plaintiffs Amended Complaint, alleging discrimination and retaliation claims under the PHRA against the individual defendants (Am. Compl. <][1 54-62), must not be dismissed, in its entirety. "To bring suit under the PHRA, a plaintiff must first have filed an administrative complaint with the PHRC within 180 days of the alleged act of discrimination." Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1996); see also 43 Pa. Cons. Stat. §§ 959(h). A plaintiff asserting claims under the PHRA "must exhaust all administrative remedies prior to seeking redress in court." Bailey v. Storlazzi, 729 A.2d 1206, 1214 (Pa. Super. Ct. 1999); see also Kunwar v. Simco, 135 F. Supp. 2d 649, 653 (E.D. Pa. 2001); 43 Pa. Cons. Stat.§ 962. The instituted his EEOC and PHRA claim timely, the EEOC erred by not including the names of the individual( s) and the retaliation in the discrimination claim in the formal charge. Plaintiff tried to get the EEOC to amend the charge and they would not comply. Hicks v. ABT Associates, Inc., 572 F.2d 960 the court heard the failure of the Equal Employment Opportunity Commission (EEOC) to give notice of a charge to the employer involved or its failure to attempt reconciliation, both of which are required by section 706(b) (42 U.S.C.S. § 2000e-5(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., does not bar a civil suit by the charging party. Once the E~OC has been given its chance to reconcile the parties informally, the individual's right to bring a civil action becomes an indispensable part of the enforcement scheme of Title VII. This right should not be defeated by the EEOC's failure to comply with its 8 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 15 of 26 PageID: 497 statutory obligations .. The failure of EEOC to find reasonable cause does not affect the individual's right to bring civil suit. The same result, the right for an individual to bring a civil action, should follow if it is shown that the Equal Employment Opportunity Commission (EEOC) improperly refused to accept an amendment to a charge. Once the charging party has done all that he can reasonably do to amend his charge in accordance with the EEOC's regulations, the statutory policy of providing the EEOC with an opportunity to reconcile the grievance has been fulfilled. The failure of the EEOC to accept the amendment is similar to the agency's failure to give the defendant notice of a charge. Both are the result of the failure of the agency to follow the statute and its own regulations. The individual employee should not be penalized by the improper conduct of the EEOC. Hicks v.ABT Associates, Inc., 572 F.2d 960. Here, Plaintiff could not include the names of the individuals because the EEOC failure to comply with its statutory obligations to let Plaintiff to name all of the individuals and as a respondent to the EEOC Charge. When Plaintiff filed his EEOC Charge, Plaintiff knew the identities of the supervisors/managers who purportedly harassed and discriminated against him. As such, Plaintiffs Fourth and Fifth Counts asserting PHRA claims as against the individual defendants must be upheld. C. Plaintiff Has Properly Served the Individual Defendants Plaintiffs followed Federal Rule of Civil Procedure 4(m) which requires Plaintiff to serve the summons and complaint upon an individual defendant within 90 days. Plaintiff made service on individuals by delivering a copy of the summons and complaint on the individuals personally; or, by leaving a copy of each at the individual's place of work; leaving a copy the summons and complaint for each to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 4(h) (B). Defendant Home Depot argues that there is no evidence in the record that Plaintiff made any effort to effectuate proper service; Plaintiff's friend followed all Federal Rules on providing service on an individual. Plaintiff's friend completed the service by "following state law too for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed. R. Civ. P. 4(h) (1) (A).6 Here, Plaintiffs friend served the Home Depot corporation and all the listed individuals with copies of the Summons and Complaint and the Amended Complaint at the Levittown, 9 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 16 of 26 PageID: 498 Pennsylvania store with an Assistant Manager that stated she work give each individual named in the Complaint their copy of the Complaint because Plaintiffs friend is not allowed to do it on the sales floor. (ECF Nos. 20 and 34). Finally, Home Depot asks the court to dismiss this lawsuit under Federal Rule of Civil Procedure 12(b) (5) for insufficient service of process because Plaintiff did not effectuate service on individual defendant within 90 days. Service may be made on individuals. "[T]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision oflaw [regarding service of process]." Light v. Wolf, 816 F.2d 746, 751 (D.C.Cir.1987) (internal quotations omitted). Neither Home Depot nor its lawyers has said it is representing the other defendants, nor has the other defendants in question has come forth and said they wasn't properly severed a copy of the Complaint or the Summons. With respect to timeliness, the version of Rule 4 that was applicable at the time Bartlette filed his Complaint provides: If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period ... Defendant Home Depot is overreaching, See Maupin v. U.S. Dep't of Energy, No. Civ. A. 03-1156 (PLF), 2005 WL 3211883, at *1 (D.D.C. Nov. 18, 2005) (dismissing case after plaintiff failed to meet a single original filing deadline and failed to respond to defendants' motions to dismiss, even after the court issued show cause orders and granted her extensions of time in which to respond). Also see Bartlette v. Hyatt Regency F.Supp.3d 016 WL 5374079, the :1 court concluded that, despite Plaintiffs counsel's dilatory performance in effectuating service, dismissal is not appropriate here. As our Circuit has recognized, "[t]he Advisory Committee note for Rule 4(m) instructs that the district court has discretion to extend the time for effecting and filing proof of service even if the plaintiff fails to show 'good cause.' " Mann v. Castiel, 681 F.3d 368, 375 (D.C.Cir.2012) (emphasis added). Indeed, the Advisory Committee Note specifically indicates that allowing additional time for service "may be justified ...... if the 10 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 17 of 26 PageID: 499 applicable statute oflimitations would bar the refiled action." Fed. R. Civ. P. 4, Advisory Comm. Note to 1993 Amendments. Such is the case here. LEGAL ARGUMENT POINT TWO PLAINTIFF'S TITLE VII CLAIMS AGAINST HOME DEPOT DOES STATE A CAUSE OF ACTION A. Plaintiff's Title VII Claims Are Timely Filed Plaintiff claims are timely filed. The law for Title VII states: If the employer in an ADA case asserts an affirmative defense, like the expiration of the statute of limitations, then the burden of proof for that defense rests solely on the employer. Americans with Disabilities Act of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq.; Civil Rights Act of 1964, § 706(e), as amended, 42 U.S.C.A. § 2000e-5(f) (1). Plaintiff understands: "Section 2000e-5(f) (1) requires that claims brought under Title VII be filed within ninety days of the claimant's receipt of the EEOC right to sue letter." Elkadrawy v. Vanguard Group, Inc., 584 F.3d 169, 173 (3d Cir. 2009) (citing 42 U.S.C. § 2000e-5(f) (1). tolling, a civil suit filed even one day late is time-barred and may be dismissed." Burgh v. Borough Council of Montrose, 251F.3d465, 470 (3d Cir. 2001) (citing Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 176 (3d Cir. 1999)); Mosel v. Hills Dept. Store, Inc., 789 F. 2d 251,253 (3d Cir. 1986). And an Oral notice from the Equal Employment Opportunity Commission (EEOC) of the dismissal of a charge can suffice to start the 90-day limitations period for filing an ADA action, but the oral notice must be equivalent to written notice. Americans with Disabilities Act of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq.; Civil Rights Act of 1964, § 706(e), as amended, 42 U.S.C.A. § 2000e-5(f) (1). The defendants do not want to consider Plaintiffs position. The 6th Circuit held: that oral notice can suffice to start the 90-day period. Oral notice must be equivalent to written notice. See, e.g., Ball v. Abbott Advertising, Inc., 864 F.2d 419, 421 (6th Cir.1988). 11 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 18 of 26 PageID: 500 With that being said, in Plaintiff Moses case EEOC Rep Shirley W eame per their phone conversation Plaintiff Moses was advised she would email him a copy of his Right-to-Sue notice, to make up the one that he did not receive by mail. He had advised the EEOC of not receiving his Right-to-Sue notice by mail. He made numerous previous attempts to obtain a copy of his Right-to-Sue notice, however he was unsuccessful, and the previous representative just gave him the number to their legal department. Plaintiff followed up and the legal department leaving messages no one returned his calls. Until one day calling and being connected EEOC Rep Shirley Wearne. She did not wait to on the phone to see if he received the emailed Right-to-Sue notice nor advise him that his limitations period would start as a result of the their phone conversation. Plaintiff stated in his Amended Complaint that he was able to gain access on January 30, 2016 to the emailed Right to Sue letter from EEOC Rep Shirley Weame that was emailed dated January 27, 2016. Plaintiff situation is the same as Ebbert v. DaimlerChrysler Corp., 319 F.3d 103. In this case, oral notice was just as complete as written notice in all respects except one. The Court stated there is no proof that Ebbert knew when the 90-day statute of limitations period would start as a result of her phone conversations with the EEOC. More specifically, no evidence shows that Ebbert was told or otherwise knew the 90 days would start running from the date of the conversation. DaimlerChrysler had the burden of proving the oral notice was as comprehensive as the written version and, in particular, that it included an explanation of the "start date." A plaintiff filing claims under Title VII must first exhaust his administrative remedies by complying with the procedural requirements set forth in 42 U.S.C. § 2000e-5, before seeking judicial review. See Purvis-Chapman v. Silverstein, No. 14-4252, 2016 U.S. Dist. LEXIS 43324, at *14 (D.N.J. Mar. 31, 2016) (dismissing prose plaintiffs Title VII claim for failure to exhaust administrative remedies). Plaintiff filed his claims under Title VII using an emailed Right to Sue letter, so the statute of limitations period would start as a result of the receipt of that email. Accordingly, the Court must uphold Plaintiffs Title VII claims against Home Depot because they are not time barred. B The Eguitable Tolling Does Apply to Plaintiff's Title VII Claims Defendants want the plaintiff to be moved to believe that equitable doctrines are not possible. The Court has utilized equitable doctrines in cases such as Plaintiffs situation to set 12 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 19 of 26 PageID: 501 the Start time of filing a Complaint. See this time period for filing a charge is subject to equitable doctrines such as tolling or estoppel. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71L.Ed.2d234 (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"). Courts may evaluate whether it would be proper to apply such doctrines, although they are to be applied sparingly. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam) ("Procedural requirements established by Congress for gaining access to * 114 the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants"). In Ebbert v. DaimlerChrysler Corp., 319F.3d103., In Ebbert, the Third Circuit reversed the trial court's grant of summary judgment and held that even though the plaintiff had oral notice of the issuance of the right to sue letter, the defendant had not proven "complete" oral notice and [*23] therefore, the doctrine of equitable tolling applied. The court stated: In this case, oral notice was just as complete as written notice in all respects except one. There is no proof that Ebbert knew when the 90-day statute of limitations period would start as a result of her phone conversations with the EEOC. More specifically, no evidence shows that Ebbert was told or otherwise knew the 90 days would start running from the date of the conversation. DaimlerChrysler had the burden of proving the oral notice was as comprehensive as the written version and, in particular, that it included an explanation of the "start date." The Court recognized when a plaintiff can demonstrate that she failed to receive the right to sue letter because of "fortuitous circumstances," "events beyond [her] control" or "no fault" of her own, the imitations period may be tolled. Lewis v. Conners Steel Co., 673 F.2d 1240, 1243 (11th Cir.1982) (quoting Franks v. Bowman Transp. Co., 495 F.2d 398, 404-05 (5th Cir.1974), rev'd on other grounds, 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976). In Plaintiffs Amended Complaint, Plaintiff asserted that he did not receive the October 30, 2015 Right to Sue Letter, and then another copy of the Right to Sue Letter was emailed to him by the EEOC on January 27, 2016. Plaintiff stated that G-Mail sever problems "computer system malfunction" prevented him from opening the EEOC e-mail until January 30, 2016, three days after it was sent by the EEOC, which constitutes events beyond Plaintiffs control. 13 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 20 of 26 PageID: 502 The Circuit Court has identified equitable tolling may apply: When a plaintiff can demonstrate that she failed to receive the right to sue letter because of "fortuitous circumstances," "events beyond [her] control" or "no fault" of her own, the imitations period may be tolled. Lewis v. Conners Steel Co., 673 F.2d 1240, 1243 (1 lth Cir.1982) (quoting Franks v. Bowman Transp. Co., 495 F.2d 398, 404-05 (5th Cir.1974), rev'd on other grounds, 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976). This factor applies here. Plaintiffs stated he was not able to gain of the emailed Right-to-Sue notice because of G- Mail malfunction" is a fortuitous circumstance warranting equitable tolling. Courts have found that ""fortuitous circumstances," "events beyond [her] control" or "no fault" of her own to justify equitable tolling of the statute of limitations. Lewis v. Conners Steel Co., 673 F.2d 1240, 1243 (1 lth Cir.1982) (quoting Franks v. Bowman Transp. Co., 495 F.2d 398, 404-05 (5th Cir.1974), rev'd on other grounds, 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976) The Court of Appeals for the Third Circuit has held that raising this issue is an affirmative defense and that the burden of proof "rests solely on the employer." Ebbert v. Daimler Chrysler Corp., 319 F.3d 103, 108 (3d Cir. 2003) (citation omitted). Equally important is Plaintiffs failure did show that he was prevented from filing his Complaint in federal court before April 29, 2016. LEGAL ARGUMENT POINT THREE PLAINTIFF'S RETALIATION CLAIMS UNDER TITLE VII AND THE PHRA (COUNTS TWO AND FIVE) SHOULD NOT BE DISMISSED Plaintiffs retaliation claim, asserted for the first time in the Amended Complaint, should not be dismissed, he proper! y explained all the fact EEOC. Plaintiff stated to the EEOC that Home Depot and all the listed Defendants retaliated again Plaintiff for filing a complaint with Home Depot's corporate office because the listed Home Depot Chain store discriminating against him in the pre-employment stage and did not want to hire him. Plaintiff wanted to properly expand the allegations in Plaintiffs PHRA and EEOC Charge. Plaintiff wanted to exhaust all his administrative remedies as state in Antol v. Perry, 82 F.3d 1291, 1295 n. 3, 1296 (3d Cir. 1996). Exhaustion of administrative remedies is a threshold requirement to proceeding in federal court. How could Plaintiff do that if he is misled by the EEOC, Plaintiff informed them that he was being discriminated against by Home Depot in the 14 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 21 of 26 PageID: 503 pre-employment stage. Plaintiff conveyed to the EEOC Rep, telling him at the time of the filing his Discrimination charge against Home Depot that Home Depot particular placed his application in pending status, while conveying to Plaintiff that his employment was pending a background check to come back from Quest Diagnostic, which Defendants knew was not going to come back, because they knew they never sent a background request in for Plaintiff. Plaintiff advised the EEOC Rep that it was about one month of going back and forth of with Home Depot's corporate office before they found out that the Levittown Home Depot was purposely sticking Plaintiffs application in the pending process. The Home Depot corporate sent me back into that particular Home Depot store and advised me to tell HR Rep. Cindy to take Plaintiff out the computer for having the job and rehire him, which she never did so Home Depot's corporate of had to do it. Plaintiff then Conveyed to the EEOC Rep, filing the discrimination charge, he was reluctant to add it to the charge. The Third Circuit has explained that "[t]he congressional policy underlying this framework was to resolve discrimination claims administratively through cooperation and I voluntary compliance in an informal, noncoercive manner." Burgh v. Borough Council of ll Montrose, 251F.3d465, 470 (3d Cir. 2001); Antol, 82 F.3d at 1296. The exhaustion requirement is "strictly construed and the failure to pursue appropriate administrative remedies will bar judicial review." Elberson v. Pennsylvania, 396 Fed. Appx. 821, 822 (3d Cir. 2010). A claim is considered exhausted if it is "fairly within" the scope of the administrative complaint or the investigation that arises therefrom. Antol, 82 F.3d at 1295; Mandel v. M & Q Packaging Corp., 706 F. 3d 157, 163 (3d Cir. 2013) ("[T]he parameters of the civil action in the district court is defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination."). This can only be done if the Plaintiff is permitted to give full evidence to the EEOC Rep and that evidence is permitted to be part of the EEOC charge filing process. Plaintiff here did his part to give EEOC all the evidence so they could file all the necessary charges of discrimination and then give the Defendants their right to be put on notice. As a Plaintiff filing a charge with the EEOC to give them the names of where I work at, the individuals I have a problem with, the company they work at and the facts as it may be, then it is the duty of the EEOC to properly advice Plaintiff as a filer. 15 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 22 of 26 PageID: 504 Plaintiff dual-filed his Charge with the EEOC and PHRC alleging only race discrimination. (See EEOC Charge, attached to the Brady Deel, as Exhibit 2). Plaintiffs EEOC Charge did not assert any claim of retaliation under Title VII or the PHRA, nor is the word "retaliation" even mentioned in the EEOC Charge. Plaintiff did not retaliation, because Plaintiff was advised by EEOC Rep that he could not file a charge of retaliation. The EEOC Rep conveyed to Plaintiff that he could only file a charge of retaliation if Plaintiff has reported Home Depot to the EEOC for the pre-employment discrimination and then they retaliated against Plaintiff afterwards. Plaintiff did not check the box on the EEOC Charge next to ''retaliation". Plaintiff did identify the alleged discriminatory conduct to the best of his knowledge to the EEOC Rep, and the EEOC Rep decided not to identify any facts that would support an allegation of retaliation. For the foregoing reasons, Plaintiff retaliation claim must not be dismissed if is a fault of the EEOC representative. See Hicks v. ABT Associates, Inc., 572 F.2d 960. The individual employee should not be penalized by the improper conduct of the EEOC. B. Plaintiffs Allegations Relating to Retaliation Should Not Be Stricken Federal Rule of Civil Procedure 12(f) governs a motion to strike. It provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter." Fed. R. Civ. P. 12(f). Content is immaterial when it "has no essential or important relationship to the claim for relief." Donnelly v. Commonwealth Fin. Sys., No. 07- 1881, 2008 U.S. Dist. LEXIS 28604, at *10 (M.D. Pa. Mar. 20, 2008) (citing Delaware Healthcare, Inc. v. MCD Holding Co., 893 F. Supp. 1279, 1291-92 (D. Del.1995)). Content is impertinent when it does not pertain to the issues raised in the complaint. Id. Plaintiff understands and hopes that when this court reviews the Defendant's request to stricken Plaintiffs allegations relating to Retaliation the court will follow the district court's decision to strike matter pursuant to Federal Rule of Civil Procedure 12(t) for abuse of discretion." Nurse v. United States, 226 F.3d 996, 1000(9th Cir.2000). However, the issue presented here is not whether the district court properly struck the matter under Rule 12(f), but whether Rule 12(f) authorizes the district court to strike such matter at all. The panel reviews this purely legal issue de novo. California Scents v. Surco Prods., Inc., 406 F.3d 1102, 1105 (9th Cir.2005) {"This court reviews de novo a district court's interpretation of the :Federal Rules of Civil Procedure.") 16 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 23 of 26 PageID: 505 Here, all allegations relating to Plaintiffs claim of retaliation should not be stricken from Plaintiffs Amended Complaint, at ir,-r 37 to 42, because such claim is subject not to dismissal, and the presence of such allegations in the Amended Complaint will show that Plaintiff was only following the advice of the EEOC and he had no power to add the retaliation claim, so by not striking the claim of retaliation will not cause prejudice and confusion. See, See Hicks v. ABT Associates, Inc., 572 F.2d 960. The individual employee should not be penalized by the improper conduct of the EEOC. LEGAL ARGUMENT POINT FOUR PLAINTIFF'S TITLE VII CLAIM FOR FAILURE TO PROVIDE A REASONABLE A VENUE FOR COMPLAINT (COUNT FQUR) SHOULD NOT BE DISMISSED An additional basis does exists to uphold Count Three of Plaintiffs Amended Complaint stating that "defendants failed to provide a reasonable avenue for complaint and remedies when it knew that it should have taken appropriate remedial action." Independent cause of action does exist under Title VII for failing to provide a reasonable avenue for complaint. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 n.l (4th Cir 1994) (citing Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989), rev'd in part, affd in relevant part, 900 F.2d 27 (4th Cir. 1990)); see also Shoemaker v. Metro Info. Serv., 910 F. Supp. 259, 263-66 (E.D. Va:. 1996) (holding individual supervisors liable under Birkbeck and Paroline). Also Shoemaker v. Metro Info. Servs., 910 F. Supp. 259 The court there found that supervisors could, indeed, qualify as "employers" under Title VII, if the challenged actions were not delegable. The court found that an agent of an employer could qualify under 42 U.S.C.S. § 2000e (b). Shoemaker v. Metro Information Services, 910 F. Supp. 259 (E.D. Va. 1996) (Jackson, J.), the Court similarly held that individual supervisors are only liable in Title VII cases "where they wield significant control over plaintiffs and their conduct cannot be categorized [**18] as a plainly delegable duty." Id. at 265. In Shoemaker, plaintiffs alleged that their supervisor committed repeated acts of sexual 17 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 24 of 26 PageID: 506 harassment. Id. at 261-62. Defendants confuse the theory of respondeat superior liability for hostile work environment under Title VII with an independent cause of action. "Respondeat superior is a means of imputing liability to an employer for the actions of its agents, servants, or employees." And in this case all of the Defendants here in this case are Managers, not coworkers and they all enforced the powers that Home Depot and its' Store Manager allowed them to have as supervisors and supporting their bad behaviors. The Court similarly held that individual supervisors are only liable in Title VII cases "where they wield significant control over plaintiffs and their conduct cannot be categorized [**18] as a plainly delegable duty." Id. at 265. Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 n.1 (4th Cir 1994). "Employer liability for co- worker harassment exists only if the employer failed to provide a reasonable avenue for complaint or, alternatively, if the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action." Olschefski v. Red Lion Area Sch. Dist., No. 12-871, 2012 U.S. Dist. LEXIS 170693, at *2l(M.D. Pa. Nov. 30, 2012). Under Title VII Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100, 10~-05 (3d Cir. 2009). POINT FIVE PLAINTIFF'S DEMAND FOR DAMAGES UNDER PHRA AND TITLE VII SHOULD NOT BKSTRICKEN Plaintiff demands for an award of all damages that are permitted under the PHRA and Title VII by law. Accordingly, the Court should permit the correct demand for damages that Plaintiff asks for under the PHRA and Title VII in respects to Plaintiffs Amended Complaint. 18 Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 25 of 26 PageID: 507 CONCLUSLUSION For all the foregoing reasons, Plaintiff John Moses respectfully requests that Count One, Two, Three, and Five of Plaintiffs Amended Complaint and the individual defendants as party defendants not be dismissed in its entirety, to Plaintiffs Amended Complaint. 19 Respectfully Submitted: ·~ ~-SE-S~~~~~- In Pro Se I . Case 3:16-cv-02400-MAS-DEA Document 38 Filed 01/04/17 Page 26 of 26 PageID: 508