ALTIERI v. CONCORDVILLE NISSAN & SUBARU

Filing 11

MEMORANDUM AND ORDER THAT DEFENDANT CONCORDVILLE MOTOR CARE, INC. MOTION TO DISMISS IS GRANTED; ETC.. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 2/14/18. 2/14/18 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FREDERICK ALTIERI
Plaintiff

:
:
:
v.
:
:
CONCORDVILLE MOTOR CAR, INC. :
Defendant
:

CIVIL ACTION
NO. 17-4447

NITZA I. QUIÑONES ALEJANDRO, J.

FEBRUARY 14, 2018

MEMORANDUM OPINION
INTRODUCTION
Plaintiff Frederick Altieri (“Plaintiff”) filed this action against his former employer,
Defendant Concordville Motor Car, Inc. (“Defendant”), alleging that he was unlawfully
terminated because of his disability in violation of the Americans with Disabilities Act (“ADA”),
42 U.S.C. §12101 et seq.

Plaintiff also asserts a state law claim for intentional infliction of

emotional distress. Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), Defendant
filed a motion to dismiss all claims asserted by Plaintiff, that is presently before this Court. [ECF
8]. Specifically, Defendant seeks to dismiss the ADA employment discrimination claim on the
basis that Plaintiff has failed to adequately plead facts showing the requisite exhaustion of
administrative remedies, as well as the state law intentional infliction of emotional distress claim
on the basis that the claim is barred by the applicable two-year statute of limitations. Plaintiff
opposes the motion. [ECF 9].1
The issues raised in the motion to dismiss have been fully briefed and are now ripe for
disposition. For the reasons stated herein, Defendant’s motion to dismiss is granted.

1

This Court has also considered Defendant’s reply. [ECF 10].

BACKGROUND
On October 5, 2017, Plaintiff filed a complaint against Defendant, which was amended
following the filing of Defendant’s initial motion to dismiss. The operative amended complaint
was filed on December 28, 2017. [ECF 6]. The amended complaint, like the original complaint,
asserts the two claims noted; to wit: an ADA claim (Count I); and a pendant state law claim for
intentional infliction of emotional distress (Count II). On January 9, 2018, Defendant filed the
underlying motion to dismiss the amended complaint. [ECF 8].
When ruling on Defendant’s motion to dismiss, this Court must accept, as true, all
relevant and pertinent factual allegations in the amended complaint and construe these facts in
the light most favorable to Plaintiff. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d
Cir. 2009). The salient allegations of the amended complaint are summarized as follows:
Plaintiff worked for Defendant (a car dealership which is alleged to be
located in Glen Mills, Pennsylvania) for nineteen years before his termination in
2014. Plaintiff alleges that since the death of his son in 2011, he has suffered from
a mental impairment that has substantially limited his ability to function.
According to Plaintiff, he was harassed and insulted by Defendant’s owners due
to his mental condition and the resultant requests for time off.
Plaintiff took a leave of absence from his job on April 4, 2014, pursuant to
the Family Medical Leave Act. Within days of commencing this leave, Plaintiff
was told “that he did not have a job to come back to.” In August 2014, Plaintiff
requested to return to work but was “summarily fired due to his fragile mental
condition in violation of the Americans [with] Disabilities Act.”
LEGAL STANDARD
A court may grant a motion to dismiss an action under Rule 12(b)(6) if the complaint
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A motion
under Rule 12(b)(6) is the appropriate procedure by which to contest a party’s timely exhaustion
of administrative remedies. Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997). When
considering a Rule 12(b)(6) motion to dismiss, a court must “accept all of the complaint’s well2

pleaded facts as true, but may disregard any legal conclusions.” Fowler, 578 F.3d at 210-11.
The court must determine “whether the facts alleged in the complaint are sufficient to show that
the plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)). The complaint must do more than merely allege the plaintiff’s entitlement to
relief: it must “show such an entitlement with its facts.” Id. (citations omitted). Although the
court is generally limited in its review to the facts contained in the complaint, it “may also
consider matters of public record, orders, exhibits attached to the complaint and items appearing
in the record of the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.
2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997).
DISCUSSION
At Count I of the amended complaint, Plaintiff asserts that he was unlawfully terminated
by Defendant because of his disability in violation of the ADA. As noted, Defendant moves to
dismiss this claim on the basis that Plaintiff has failed to allege facts sufficient to show that he
properly exhausted the claim with the Equal Employment Opportunity Commission (“EEOC”).
This Court agrees.
Before commencing an ADA action in federal court, a plaintiff must exhaust his/her
administrative remedies, which consists of filing a timely charge of discrimination with the
EEOC and receiving a right-to-sue letter from the EEOC after it investigates the charge. Itiowe
v. NBC Universal, Inc., 556 F. App’x 126, 128 (3d Cir. 2014) (citing Churchill v. Star Enters.,
183 F.3d 184, 190 (3d Cir. 1999)). An individual who brings an employment discrimination
claim under the ADA must follow the administrative procedures set forth in Title VII of the Civil

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Rights Act of 1964, 42 U.S.C. §2000e-5.2 Id. The exhaustion requirement gives the EEOC a
chance to settle the case and puts the employer “on notice of the claims likely to be filed against
it.” Barzanty v. Verizon Pa., Inc., 361 F. App’x 411, 414 (3d Cir. 2010) (citing Antol v. Perry,
82 F.3d 1291, 1296 (3d Cir. 1996); and 42 U.S.C. §2000e-5(b) and (e)(1)). An ADA claim is not
fully exhausted, however, until the plaintiff receives a right-to-sue letter from the EEOC.
Churchill, 183 F.3d at 190. Although failure to exhaust administrative remedies does not affect a
district court’s jurisdiction, such failure constitutes a ground for dismissal for failure to state a
claim. Itiowe, 556 F. App’x at 128 (citing Angelino v. New York Times Co., 200 F.3d 73, 87 (3d
Cir. 2000)).
With respect to administrative exhaustion of his claim, Plaintiff alleges that:
Prior to the institution of this lawsuit, the Plaintiff informed the
Pennsylvania Human Relations Commission that the Plaintiff
believes he was a victim of a wrongful termination, because of his
mental disability, by the Defendant and that he would be filing this
complaint against the Defendant.
Plaintiff’s administrative
remedies have been exhausted giving rise to the instant lawsuit.
(Amend. Compl. ¶5). Though Plaintiff baldly alleges in this single paragraph that he has
“exhausted” his administrative remedies, he has not alleged facts sufficient to support this
conclusory assertion. Notably, Plaintiff has not alleged anywhere that he filed a charge of
discrimination with the EEOC,3 or that he received a right-to-sue letter from the EEOC, facts
essential to satisfying the exhaustion requirement.

2

Section 2005e-5 sets forth the procedure for filing a charge of discrimination with the EEOC and
the requirement that a plaintiff exhaust those administrative remedies before filing suit.
3

Defendant concedes that Plaintiff dual filed a charge of discrimination with the Pennsylvania
Human Resources Commission (“PHRC”) and EEOC. [See ECF 8 at p. 4]. “Pennsylvania plaintiffs may
dual-file a charge with both agencies.” Wilson v. Gerber, 2013 WL 3878686, at *5 (E.D. Pa. July 26,
2013) (citing Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997)). Notably, Plaintiff has not
asserted a claim for a violation of the Pennsylvania Human Relations Act in this action.
4

In response to Defendant’s argument in this respect, Plaintiff merely reiterates the
assertion in the amended complaint that he “informed the Pennsylvania Human Relations
Commission” about his underlying claim, and attaches a February 3, 2016 right-to-sue letter that
he received from the PHRC. [See ECF 9 at p. 11]. Neither Plaintiff’s allegations with respect to
the PHRC nor the right-to-sue letter that he received from the PHRC, however, satisfies
Plaintiff’s obligation to exhaust his ADA claim with the EEOC. Under these circumstances,
Plaintiff’s failure to exhaust the administrative remedies for his ADA claim (Count I) requires
dismissal of this claim.
At Count II of the amended complaint, Plaintiff asserts a state law claim for intentional
infliction of emotional distress.4 As described above, this claim is based on the treatment he
allegedly suffered during his employment with Defendant. Because Plaintiff last worked for
Defendant on April 4, 2014, and Plaintiff did not file his complaint in this matter until October 5,
2017, Defendant argues that this state law claim is barred by the applicable two-year statute of
limitations. This Court agrees.
Generally, the statute of limitations is an affirmative defense that a defendant must plead
in an answer. In this Circuit, however, a statute of limitations defense may also be raised in a
Rule 12(b)(6) motion “if the time alleged in the statement of a claim shows that the cause of

4

As a basis for jurisdiction over his remaining state law claim, Plaintiff cites only to 28 U.S.C.
§1367, which provides a district court supplemental jurisdiction over sufficiently related state law claims.
Though courts should ordinarily decline to exercise supplemental jurisdiction over state law claims when
the federal law claims are dismissed, see Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 (3d Cir.
1999), the decision to exercise supplemental jurisdiction over state law claims is within the district court’s
discretion. See 28 U.S.C. §1367(c). Here, though Plaintiff relies solely on 28 U.S.C. §1331 for original
jurisdiction and 28 U.S.C. §1367 for supplemental jurisdiction, the face of Plaintiff’s amended complaint
suggests that diversity jurisdiction under 28 U.S.C. §1332 might also exist, since Plaintiff is identified as
a resident of Florida, and Defendant is identified as a corporation located in Pennsylvania. Under these
circumstances, this Court will exercise supplemental jurisdiction over Plaintiff’s remaining state law
claim.
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action has not been brought within the statute of limitations.” Schmidt v. Skolas, 770 F.3d 241,
249 (3d Cir. 2014) (quoting Robinson v. Johnson, 313 F.3d 128, 134–35 (3d Cir. 2002)). That is,
a motion to dismiss can only be granted on the basis of the expiration of the statute of limitations
if the statute’s applicability is apparent on the face of the complaint. Robinson, 313 F.3d at 135;
see also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994);
Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (“If the bar is not apparent
on the face of the complaint, then it may not afford the basis for a dismissal of the complaint
under Rule 12(b)(6).”). Because the statute of limitations argument is an affirmative defense, the
burden of establishing its applicability rests upon the movant, here Defendant. See Fed. R. Civ.
P. 8(c)(1); Bradford-White Corp. v. Ernst & Whinney, 872 F.2d 1153, 1161 (3d Cir. 1989).
Plaintiff’s alleged state tort claim arose in Pennsylvania; thus, the law of Pennsylvania
applies. See, e.g., Zurich Am. Ins. Co. v. Indian Harbor Ins. Co., 235 F. Supp. 3d 690, 695 (E.D.
Pa. 2017) (applying Pennsylvania law in diversity case); Caleb v. CRST, Inc., 2001 WL 438420,
at *2 (E.D. Pa. Apr. 30, 2001) (applying Pennsylvania law and statute of limitations in diversity
action). As such, Plaintiff’s claim for intentional infliction of emotional distress is subject to
Pennsylvania’s two-year statute of limitations. See 42 Pa. Con. Stat. §5524(7); Bougher v.
University of Pittsburgh, 882 F.2d 74, 80 (3d Cir. 1989). Under Pennsylvania law, a cause of
action accrues, and the statute of limitations begins to run, when a plaintiff is aware, or should be
aware, of the existence and source of the claimed injury. Pocono Intern. Raceway, Inc. v.
Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983). A cause of action generally accrues when
the final significant event that would make the claim sustainable occurs. Ross v. Johns-Manville
Corp., 766 F.2d 823, 826 (3d Cir. 1985).

6

As noted, Plaintiff’s intentional infliction of emotional distress claim is premised on his
allegations that he was mistreated by the owners of his employer during the time that he worked
for Defendant.

Specifically, Plaintiff alleges that Defendant’s owners/agents made

“discriminatory remarks and physical acts” against Plaintiff during the course of his employment
with Defendant. By Plaintiff’s own assertions, he last worked for Defendant on April 4, 2014. It
is fair to conclude that all of the allegations with respect to Plaintiff’s mistreatment occurred
prior to or on his last day of employment on April 4, 2014, and were either known or reasonably
knowable to Plaintiff on that date. Therefore, absent any tolling, the applicable two-year statute
of limitations expired on Plaintiff’s tort claim on April 4, 2016. Because Plaintiff did not
commence this action until October 5, 2017, Defendant argues that this tort claim is time-barred.
In response, Plaintiff argues only that the statute of limitations should be tolled during the
period that his administrative charges before the PHRC were pending. However, such argument
has been repeatedly rejected by district courts in this Circuit. See, e.g., Brown v. DaVita Inc.,
2011 WL 5523823, at *3 (E.D. Pa. Nov. 14, 2011) (citing various cases and stating that “district
courts in this Circuit have held that filing a charge with the EEOC or PHRC does not toll a
related state-law claim.”); Barron v. St. Joseph’s Univ., 2002 WL 32345690, at *6-7 (E.D. Pa.
Jan. 17, 2002) (“District courts in Pennsylvania have extended the logic of Johnson v. Railway
Express Agency, 421 U.S. 454, 465-66, 95 S. Ct. 1716, 44 L.Ed.2d 295 (1975) in holding that the
pendency of a discrimination charge before the PHRC or EEOC does not toll the statute of
limitations for related state tort claims.”); Vaughan v. Pathmark Stores, Inc., 1999 WL 299576,
at *3 (E.D. Pa. May 10, 1999). Therefore, as Plaintiff is not entitled to tolling with respect to his
tort claim during the pendency of his administrative proceedings, this Court finds that Plaintiff’s
state tort claim is time-barred.

7

CONCLUSION
For the reasons stated herein, Defendant’s motion to dismiss is granted. An Order
consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.

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