CHAN v. BARBOUR, INC.
MEMORANDUM AND ORDER THAT THE MOTION TO PARTIALLY DISMISS AND TO STRIKE IS DISMISSED AS MOOT. THE MOTION TO PARTIALLY DISMISS AND TO STRIKE IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 7/12/17. 7/12/17 ENTERED AND E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 16-5688
July 12, 2017
Plaintiff Frances Chan, a woman of Chinese descent, alleges age, sex, and national origin
discrimination by Barbour, Inc., an international clothing manufacturer and retailer. 1 Before the
Court is Defendant’s motion to dismiss and to strike portions of the Amended Complaint. For
the reasons that follow, the motion will be granted in part and denied in part.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff was hired as a manager at Barbour’s Ardmore, Pennsylvania store in 2008, and
became US Retail Inventory Planning and Allocation Manager in 2011. 2 In January 2013,
Barbour’s Head of Retail for North America stepped down, and Plaintiff assumed his
responsibilities while the position remained unfilled. 3 In March 2013, Plaintiff was promoted to
the separate position of US Sales Manager-Retail. 4
Although Plaintiff claims to have demonstrated success in handling the responsibilities of
Head of Retail for North America, Barbour did not promote her to that position. 5 Instead, in
Am. Compl. (Doc. No. 6) ¶¶ 1, 3.
Id. ¶¶ 10, 14.
Id. ¶¶ 25-26.
Id. ¶ 27.
Id. ¶ 29.
November 2103, Barbour hired Christopher Sapienza, a younger white man who was less
qualified and less experienced. 6 Sapienza became Plaintiff’s direct supervisor and was paid
nearly twice her salary. 7 In August 2014, Plaintiff, who was then age sixty, was terminated. 8
Plaintiff alleges that she was mistreated by Sapienza and that Barbour permitted Sapienza
to create a hostile work environment. 9 She also claims to have not received adequate
compensation for simultaneously performing the duties of Head of Retail, US Sales Manager,
and US Retail Inventory Planning and Allocation Manager. 10
Plaintiff filed charges with the Pennsylvania Human Rights Commission (“PHRC”) and
the United States Equal Employment Opportunity Commission (“EEOC”), and received a rightto-sue letter from the EEOC on September 6, 2016. On October 31, 2016, Plaintiff filed a
Complaint asserting claims of age, sex, and ancestry discrimination in violation of the
Pennsylvania Human Relations Act (“PHRA”). 11 Defendant moved to partially dismiss and to
strike portions of the Complaint, and on January 12, 2017, Plaintiff filed an Amended Complaint
adding claims under the Age Discrimination in Employment Act (“ADEA”), 12 Title VII of the
Civil Rights Act of 1964 (“Title VII”), 13 and the Equal Pay Act (“EPA”). 14
In response to the Amended Complaint, Defendant filed a second motion to partially
dismiss and to strike. In it, Defendant moves to (1) dismiss the later-added Title VII and ADEA
Id. ¶¶ 32-34.
Id. ¶¶ 35-38.
Id. ¶ 69.
Id. ¶¶ 50-67.
Id. ¶ 28.
43 P.S. § 951, et seq.
29 U.S.C. § 621, et seq.
42 U.S.C. § 2000e, et seq.
29 U.S.C § 201, et seq.
claims as statutorily time-barred; (2) dismiss Plaintiff’s claims for punitive damages under the
PHRA and the Equal Pay Act as such damages are not available; 15 (3) dismiss any potential
claims and requests for damages made under a “failure to promote” theory as such a claim would
be time-barred; and (4) strike all allegations in the complaint related to a “failure to promote”
Under Rule 12(b)(6), dismissal for failure to state a claim upon which relief can be
granted is appropriate where a plaintiff’s “plain statement” lacks enough substance to show that
he is entitled to relief. 16 In determining whether a motion to dismiss should be granted, the court
must consider only those facts alleged in the complaint, accepting the allegations as true and
drawing all logical inferences in favor of the non-moving party. 17
Federal Rule of Civil Procedure 12(f) provides in pertinent part that “[t]he court may
strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” “[S]triking a pleading is a drastic remedy to be used sparingly because of
the difficulty of deciding a case without a factual record. Thus, although Rule 12(f) grants the
court the power to grant a motion to strike, such motions are not favored and usually will be
denied unless the allegations have no possible relation to the controversy and may cause
prejudice to one of the parties, or if the allegations confuse the issues.” 18
Plaintiff concedes that punitive damages are unavailable under the PHRA and the EPA as a matter of law. Plff’s
Opp. Mot. Dismiss (Doc. No. 12-1) at 2. Accordingly, the motion to dismiss will be granted as it relates to punitive
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Fay v. Muhlenberg Coll., No. 07-4516, 2008 WL
205227, at *2 (E.D. Pa. Jan. 24, 2008).
Dann v. Lincoln Nat’l Corp., 274 F.R.D. 139, 142-43 (E.D. Pa. 2011) (internal quotation marks and citations
A. Claims under Title VII and the ADEA
Defendant argues that Plaintiff’s Title VII and ADEA claims are untimely. Upon receipt
of a right-to-sue letter from the EEOC, an individual has ninety days to file ADEA or Title VII
claims. 19 Plaintiff received a right-to-sue letter from the EEOC on September 6, 2016, 20 and
filed the original Complaint fifty-five days later. However, the original Complaint only alleged
PHRA violations, and the Title VII and ADEA were first alleged in the Amended Complaint,
filed 128 days after receipt. 21 But while the Title VII and ADEA claims were made beyond the
ninety day limit, the Court concludes that they relate back to the timing of the original
Pursuant to Rule 15(c)(1)(B), “[a]n amendment to a pleading relates back to the date of
the original pleading when . . . (B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original
pleading.” “In essence, application of Rule 15(c) involves a search for a common core of
operative facts in the two pleadings. As such, the court looks to whether the opposing party has
had fair notice of the general fact situation and legal theory upon which the amending party
29 U.S.C. § 626(e); 42 U.S.C. § 2000e-5(f)(1); see Jones v. Boyd, No. CIV. A. 97-3363, 1998 WL 314668, at *4
(E.D. Pa. June 11, 1998) (“The Court concludes that the ADEA is most analogous to Title VII and adopts a ninety
(90) day limitations period for plaintiff's ADEA claim.”), aff'd, 187 F.3d 626 (3d Cir. 1999). The filing deadline “is
akin to a statute of limitations rather than a jurisdictional bar.” Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d
236, 240 (3d Cir. 1999); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (holding that time
limitations in Title VII are not jurisdictional but are instead akin to statutes of limitations).
Am. Compl. ¶ 73.
The Amended Complaint was properly filed pursuant to Rule 15(a)(1).
Neither party acknowledged the relation-back doctrine in their briefs. Furthermore, Plaintiff’s response to
Defendant’s timeliness argument focused on the exhaustion of administrative remedies rather than the timeliness of
Plaintiff’s federal discrimination claims. In the interests of justice, the Court considers the relation back doctrine
sua sponte. See Gallagher v. Borough of Downingtown, No. CIV. A. 98-3885, 1999 WL 1081070, at *3 n.1 (E.D.
Pa. Nov. 30, 1999).
Plaintiff’s original Complaint and Amended Complaint share identical facts, and
Defendant had fair notice of the federal discrimination claims, which are similar to the state-law
discrimination claims raised in both documents. The Title VII and ADEA claims therefore relate
back to the date of the original Complaint and are timely. Defendant’s motion to dismiss
Plaintiff’s Title VII and ADEA claims will be denied.
B. Allegations Relating to a “Failure to Promote” Claim
Defendant argues that the Amended Complaint implicitly advances a “failure to promote”
claim, and urges the Court to dismiss it as time-barred for failure to exhaust administrative
remedies. Defendant also urges the Court to strike Paragraphs 28-29, 32, 36-37, 39, and 69 of
the Amended Complaint which discuss Sapienza’s hiring, Chan’s lack of promotion, and the
compensation differences between the two. It is not clear whether Plaintiff seeks to allege a
discrete claim for failure to promote, and if so, whether such a claim would be time-barred. If
Plaintiff wishes to assert such a claim, and can show it is not time-barred, she will be granted
leave to amend to do so.
Regardless as to whether Plaintiff alleges a failure to promote claim, Defendant has not
shown that striking Paragraphs 28-29, 32, 36-37, 39, and 69 is necessary. 24 These paragraphs
Bensel v. Allied Pilots Ass’n, 387 F.3d 298, 310 (3d Cir. 2004); see also Anderson v. Mercer Cty. Sheriff’s Dep’t,
No. 11-7620, 2013 WL 776237, at *5 (D.N.J. Feb. 28, 2013) (Title VII gender discrimination claim made in
amended complaint was not time-barred by the ninety day limitation because the “‘conduct, transaction, and
occurrence’ surrounding Plaintiff’s Amended Complaint are the same as the original Complaint” and Defendant had
notice of claim); Walker-Robinson v. J.P. Morgan Chase Bank, N.A., No. 11-4913, 2012 WL 3079179, at *7 (D.N.J.
July 27, 2012) (ADEA claim made in amended complaint not time-barred by the ninety day limit because the facts
and circumstances remained the same as those in the original timely complaint, and Defendant had adequate notice).
See Newborn Bros. Co. v. Albion Engineering Co., 299 F.R.D. 90, 94 (D.N.J. 2014) (“even where the challenged
material is redundant, immaterial, impertinent, or scandalous, a motion to strike should not be granted unless the
presence of the surplusage will prejudice the adverse party”).
provide factual support for Plaintiff’s claim that she received differential treatment. 25
Furthermore, outside of the conclusory assertion that they “will only cause prejudice to
Defendant and/or will only serve to confuse the issues,” Defendant has not demonstrated how it
would be unduly prejudiced or why the issues would be confused. 26 Defendant has not met its
burden to show that the drastic remedy of striking portions of the Amended Complaint is
warranted, and Defendant’s motion to strike will be denied.
For the reasons stated above, Defendant’s motion will be granted in part and denied in
part. An appropriate order follows.
See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (holding that while “discrete discriminatory
acts are not actionable if time barred,” the statute does not “bar an employee from using the prior acts as background
evidence in support of a timely claim.”).
Supp. Def. Mot. Dismiss at 11; see Airgood v. Twp. of Pine, No. 14-1249, 2016 WL 1247237, at *12 (W.D. Pa.
Mar. 30, 2016) (“To the extent the challenged allegations are potentially prejudicial and/or likely to confuse a factfinder, the Court will have the ability to address these concerns through appropriate pretrial orders and/or careful
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?