Misiolek v. The Hershey Company
MEMORANDUM & ORDER - IT IS ORDERED that Hershey's Motion to Dismiss 19 is GRANTED IN PART AND DENIED IN PART. 1. To the extent that the Plaintiff, Ms. Misiolek, seeks to include her employers denials of requests for transfer in her claims for gender discrimination, these claims are DISMISSED. 2. Defendant Hersheys Motion to Dismiss is DENIED in all other respects.Signed by Honorable John E. Jones, III on 6/12/17. (sc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THE HERSHEY COMPANY,
Hon. John E. Jones III
MEMORANDUM & ORDER
June 12, 2017
Presently pending before the Court is Defendant the Hershey Company’s
Motion to Dismiss Plaintiff’s Amended Complaint for Failure to State a Claim.
(Doc. 19). The Motion has been fully briefed (docs. 20, 21 and 22), and is thus
ripe for the Court’s review. For the following reasons, the Motion shall be granted
in part and denied in part as outlined below.
On or about June 26, 2000, Defendant the Hershey Company (“Hershey”)
hired Plaintiff Maryann Misiolek (“Ms. Misiolek”) as an industrial engineer. (Doc.
18, ¶ 8). Ms. Misiolek was hired with the title of Director of Product
Costing/Capital Administration Global Financing. (Id., ¶ 9). Her direct supervisor
The following factual background is drawn from the allegations contained in the
Amended Complaint, taken in the light most favorable to Plaintiff. (Doc. 18).
was a man by the name of Joseph Carlin (“Mr. Carlin”). (Id., ¶ 10). In September
2013, Ms. Misiolek and Mr. Carlin began a consensual romantic relationship. (Id.,
As part of her job duties, Ms. Misiolek was required to travel with Mr.
Carlin to represent Hershey’s business interests domestically and abroad. (Id., ¶
13). In or around February 2014, Ms. Misiolek and Mr. Carlin traveled to New
York City for an overnight business trip prior to departing on official business to
India. (Id., ¶ 14). At Mr. Carlin’s express direction, Ms. Misiolek expensed the
cost of both the hotel and the meals in New York City to Hershey. (Id., ¶ 15).
In June 2014, Mr. Carlin reported the consensual romantic relationship
between himself and Ms. Misiolek to Hershey human resources personnel
(“Hershey HR”). (Id., ¶ 16). At that time, Mr. Carlin also informed Ms. Misiolek
that an imminent corporate restructuring would result in one of them being
transferred to a different unit within Hershey. (Id.). Neither Hershey HR nor
executive-level management ever spoke with Ms. Misiolek concerning her
relationship with Mr. Carlin. (Id.).
The anticipated corporate restructuring never occurred. (Id., ¶ 17). In or
around August 2014, Ms. Misiolek and Mr. Carlin agreed to end their relationship.
(Id., ¶ 17). Ms. Misiolek began to feel increasingly uncomfortable working under
Ms. Misiolek clarifies that her relationship with Mr. Carlin in no way violated Hershey’s
consensual relationship policy; nor did it impact her performance at Hershey. (Id., ¶ 12).
Mr. Carlin, and sought a transfer from her position to a different unit with a
different supervisor. (Id.). However, her requests for a transfer were denied. (Id.).
Ms. Misiolek alleges that internal transfer requests by senior-level male employees
are routinely approved (id., ¶ 19), and that her request was denied “in an attempt to
encourage her to voluntarily resign” from Hershey. (Id., ¶ 18).
On or about October 27, 2014, Ms. Misiolek was questioned by Hershey HR
regarding the expense reports submitted pursuant to the New York City business
trip. (Id., ¶ 20). Immediately thereafter, Ms. Misiolek was suspended for two (2)
weeks pending further investigation. (Id., ¶ 21).
On October 29, 2014, Ms. Misiolek was terminated from her employment
with Hershey. (Id., ¶ 22). Though she was not provided with a termination letter,
Ms. Misiolek alleges that she was terminated for purported violations of Hershey’s
consensual relationship policy; for violations of the travel expense policy; and for
violating the code of business ethics. (Id.). While she denies having committed
these violations, Ms. Misiolek alleges that male employees in positions similar to
that which Ms. Misiolek occupied were not terminated for similar violations. (Id.,
¶ 24). Rather, they were given the opportunity to remit to Hershey the amount of
the alleged transaction that violated the expense policy. (Id.). Accordingly, Ms.
Misiolek alleges that her gender, and not these purported violations, was the cause
of her termination. (Id., ¶¶ 27-28).
Mr. Carlin was also terminated from Hershey’s employ for misconduct on or
about October 31, 2014. (Id., ¶ 23). No further information regarding Mr. Carlin’s
termination is included in Ms. Misiolek’s Amended Complaint. (See generally,
Ms. Misiolek commenced this action with the filing of a Complaint on
November 15, 2016. (Doc. 1). On January 18, 2016, Hershey responded with a
Motion to Dismiss. (Doc. 9). On March 8, 2017, Ms. Misiolek filed the operative
Amended Complaint (doc. 18), thereby terminating Hershey’s prior motion. In her
Amended Complaint, Ms. Misiolek alleges discrimination on the basis of her
gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (“Title VII”) (Count I). She further alleges sex discrimination in violation
of the Pennsylvania Human Relations Act, 43 P.S. § 955(a) (“PHRA”) (Count II).
Ms. Misiolek requests compensation for back pay, front pay, lost retirement
benefits, lost wages, and other lost employee benefits. She also requests
compensatory, statutory and punitive damages in an amount to be determined at
trial, and such other relief as this Court should deem necessary. (Doc. 1, ¶ 35).
STANDARD OF REVIEW
In considering a motion to dismiss pursuant to Rule 12(b)(6), courts “accept
all factual allegations as true, construe the complaint in the light most favorable to
the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny,
515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292
F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to
Rule 12(b)(6), a court generally should consider only the allegations in the
complaint, as well as “documents that are attached to or submitted with the
complaint, . . . and any matters incorporated by reference or integral to the claim,
items subject to judicial notice, matters of public record, orders, [and] items
appearing in the record of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d
256, 260 (3d Cir. 2006).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the
pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain
a short and plain statement of the claim showing that the pleader is entitled to
relief, “in order to give the defendant fair notice of what the claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint
attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual
allegations, it must contain “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise
a right to relief above the speculative level . . . .” Victaulic Co. v. Tieman, 499
F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to
satisfy the plausibility standard, the complaint must indicate that defendant’s
liability is more than “a sheer possibility.” Iqbal, 556 U.S. at 678. “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it
‘stops short of the line between possibility and plausibility of entitlement to
relief.’” Id. (quoting Twombly, 550 U.S. at 557).
Under the two-pronged approach articulated in Twombly and later
formalized in Iqbal, a district court must first identify all factual allegations that
constitute nothing more than “legal conclusions” or “naked assertions.” Twombly,
550 U.S. at 555, 557. Such allegations are “not entitled to the assumption of truth”
and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss.
Iqbal, 556 U.S. at 679. Next, the district court must identify “the ‘nub’ of the . . .
complaint – the well-pleaded, nonconclusory factual allegation[s].” Id. Taking
these allegations as true, the district judge must then determine whether the
complaint states a plausible claim for relief. See id.
However, “a complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will ultimately prevail on the
merits.” Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 556-57). Rule 8
“does not impose a probability requirement at the pleading stage, but instead
simply calls for enough facts to raise a reasonable expectation that discovery will
reveal evidence of the necessary element.” Id. at 234.
Hershey argues that Ms. Misiolek’s claims in relation to Hershey’s denial of
her requests to transfer should be dismissed because her allegations that she was
repeatedly refused a transfer are time-barred and because Ms. Misiolek failed to
include those allegations in her charge before the Equal Employment Opportunity
Commission (“EEOC”). Hershey also argues that Ms. Misiolek’s claims that
Hershey treated her differently on the basis of her gender fail to meet the pleading
standards of FED. R. CIV. P. 12(b)(6), as Mr. Carlin was also terminated pursuant to
the same investigation. We first consider Hershey’s argument that the denial of
Ms. Misiolek’s request for a transfer is time-barred and should be dismissed for
failure to exhaust administrative remedies.
Exhaustion of administrative remedies
Ms. Misiolek alleges that Hershey’s adverse employment actions against her
consisted not only of her termination, but also of Hershey’s refusal to grant Ms.
Misiolek a transfer to a different business unit in or around August 2014.
However, Hershey argues that the purported transfer requests were denied more
than 300 days before Ms. Misiolek provided her discrimination charge to the
EEOC. See Mikula v. Allegheny Cnty. of Pa., 583 F.3d 181, 185 (3d Cir. 2009)
(“Under Title VII, a claimant in Pennsylvania must file a discrimination charge
with the EEOC within 300 days of an unlawful discrimination practice.” (citing 42
U.S.C. § 2000e-5(e)(1))). Hershey also contends that the denials of transfer are
beyond the scope of the allegations Ms. Misiolek made in the EEOC charge. Thus,
to the extent her claims encompass the denials, they should be dismissed for failure
to exhaust administrative remedies.
Ms. Misiolek signed and dated the charge sent to the EEOC on August 21,
2015. The charge is time-stamped as received on August 25, 2015. Hershey avers
that 300 days prior to August 25, 2015 is October 29, 2014, the date of Ms.
Misiolek’s termination. (Doc. 20, p. 16). According to Ms. Misiolek’s Amended
Complaint, Hershey denied her requests for transfer in August 2014, well prior to
the end of October. Accordingly, Ms. Misiolek’s allegation that she was denied a
transfer on the basis of her gender is outside the 300 day statutory window.
Ms. Misiolek argues that the denial of her transfer request is not time-barred,
however, because it falls fairly within the scope of her EEOC charge and the
investigation that arose therefrom. The Third Circuit has held that ‘“the
parameters of the civil action in the district court are defined by the scope of the
EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination.’” Webb v. City of Phila., 562 F.3d 256, 263 (3d Cir. 2009)
(quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 398-99 (3d Cir. 1976)).
“The purpose of this administrative exhaustion requirement is to put the EEOC on
notice of the plaintiff’s claims and afford it ‘the opportunity to settle disputes
through conference, conciliation, and persuasion, avoiding unnecessary action in
court.’” Webb, 562 F.3d at 262 (citing Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir.
We thus consider whether the EEOC was afforded an opportunity to
investigate Ms. Misiolek’s claims that her requests for transfers were denied with
discriminatory intent. In response to the portion of the charge form prompting Ms.
Misiolek for “the particulars,” Ms. Misiolek’s charge scantly alleges:
Employer questioned and investigated a lawful, consensual romantic
relationship with supervisor against which the employer had no policy. I was
terminated as a result of this relationship.
(Doc. 10-2, p. 2). At no place in the charge does Ms. Misiolek mention the denial
of her requests for transfer, or provide any indication to the EEOC that a transfer
had even been requested. (See generally, id.). Certainly, Ms. Misiolek did not
allege that she had requested transfers for reasons related to her relationship with
Mr. Carlin, or that they had been denied intentionally to discriminate against Ms.
Perhaps more telling, in her brief in opposition to Hershey’s Motion, Ms.
Misiolek does not allege whatsoever that the denials of her requests for transfer
surfaced during the course of the EEOC investigation. Instead, Ms. Misiolek is
entirely silent regarding the content of any interviews or interactions she might
have had with the EEOC subsequent to the submission of her charge. Her sole
rebuttal of Hershey’s argument is a mere restatement of the standard, as she alleges
that the denials of her requests constitute a continuing course of discriminatory
conduct fairly within the scope of the EEOC’s investigation. (Doc. 21, p. 15).
Without a single factual allegation in support of this recitation, however, we cannot
find that Ms. Misiolek’s argument has merit. Rather, for the reasons recited above,
we find that Ms. Misiolek’s claim concerning her denial of a transfer did not fall
within the scope of her charge. See Green v. Postmaster General of U.S., 437
Fed.Appx. 174, 178 (3d Cir. July 18, 2011) (finding that a transfer which occurred
after the filing of an EEO complaint “was a discreet act” outside the scope of the
complaint). Accordingly, the EEOC was not adequately “on notice” that Ms.
Misiolek intended to raise this claim, and to allow it to go forward here “would
amount to an administrative bypass.” Webb, 562 F.3d at 263. As such, we hold
that Ms. Misiolek is precluded from raising the denials in relation to her gender
discrimination claims going forward.
Substantive challenges to Ms. Misiolek’s gender discrimination
We now turn to Hershey’s substantive arguments challenging Ms.
Misiolek’s claims of gender discrimination under Title VII and the PHRA.3 Title
VII provides that “[i]t shall be an unlawful practice . . . to discriminate against any
individual . . . because of sex.” 42 U.S.C. § 2000e 2(a)(1). “To state a prima facie
case of gender discrimination, a plaintiff must prove that: (1) she is a member of a
protected class; (2) she was qualified for the position; (3) she suffered an adverse
employment action; [and] (4) the adverse employment action occurred under
circumstances that give rise to an inference of unlawful discrimination.” Stewart v.
Keystone Real Estate Group, LP, No. 4:14-CV-1050, 2015 WL 1471320, at *2
(M.D.Pa. Mar. 31, 2015) (citing Wooler v. Citizens Bank, 274 Fed. App’x 177, 180
(3d Cir. 2008)).
Hershey’s attacks focus on the fourth element: that the adverse employment
action occurred under circumstances giving rise to an inference of unlawful
discrimination. First, Hershey asserts that Hershey terminated Mr. Carlin for the
same policy violation as Ms. Misiolek. Second, Hershey contends that Ms.
Misiolek has not alleged that similarly situated employees who were not members
“It is well established that analogous Title VII and PHRA claims are interpreted
coextensively.” Jones v. SEPTA, No. 12-cv-6582-WY, 2014 WL 3887747, at *15 (E.D.Pa. Aug.
7, 2014) (citing Burton v. Teleflex Inc., 707 F.3d 417, 432 (3d Cir. 2013) (applying the “same
standards” to gender discrimination claims brought under Title VII and analogous claims under
of her protected class were treated more leniently under similar circumstances. For
the following reasons, Hershey’s arguments lack merit.
Hershey’s contention that Ms. Misiolek’s claim fails because Hershey also
fired Mr. Carlin is misplaced because whether Hershey terminated Mr. Carlin for
the same policy violation as Ms. Misiolek requires the Court to look beyond the
facts of Ms. Misiolek’s well-pleaded Complaint. This we may not do at this early
stage in litigation. While Ms. Misiolek alleges that Mr. Carlin was also fired “for
misconduct,” her Amended Complaint does not provide additional factual matter
regarding when or why Mr. Carlin was terminated. (Doc. 18, ¶ 23). At this time,
taking all facts in the Amended Complaint as true and in a light most favorable to
Ms. Misiolek, we cannot presume based on Hershey’s briefings that Mr. Carlin
was indeed fired for the same misconduct as Ms. Misiolek. Accordingly, we shall
not dismiss Ms. Misiolek’s gender discrimination claims at this early time.
Next, Hershey argues that Ms. Misiolek failed to allege that similarly
situated male employees were treated more favorably than she under similar
circumstances.4 However, in her Amended Complaint, Ms. Misiolek names
Comparator evidence is one method by which a plaintiff may raise an inference of
discrimination pursuant to the fourth element of a claim of gender discrimination. Houston v.
Dialysis Clinic, Inc., Civ. Action No. 13-4461, 2015 WL 3935104, at *5 (D.N.J., June 26, 2015)
(“In order to raise an inference of discrimination based on comparator evidence, a plaintiff must
demonstrate that: (1) the acts of the similarly situated employees were of a “comparable
seriousness” and (2) the employment decision must have been made by the same supervisors”)
(citing Taylor v. Procter & Gamble, 184 F.Supp.2d 402, 410, aff’d 53 Fed. Appx. 649 (3d Cir.
several men in senior management positions who committed violations of
Hershey’s expense reporting policies and/or code of business ethics but who were
not terminated. (Doc. 18, ¶ 24). Rather, Ms. Misiolek alleges that these
employees were “given the opportunity to remit to Hershey the amount of the
alleged transgression” and did not suffer any further adverse employment action.
At this early stage, and in an abundance of caution, we decline to find that
Ms. Misiolek’s pleadings fail to rise to the standard required by the seminal cases
of Iqbal and Twombly, cited in our Standard of Review, Section III, above. Rather,
we find that Ms. Misiolek has pled sufficient factual material such that comparator
evidence exists to support her claims, which shall therefore survive a motion to
dismiss. Accordingly, in this regard Hershey’s Motion shall be denied.
Hershey’s Motion to Dismiss shall be granted in part and denied in part as
elucidated above and set forth in our Order below.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
To the extent that the Plaintiff, Ms. Misiolek, seeks to include her
employer’s denials of requests for transfer in her claims for gender
discrimination, these claims are DISMISSED.
Defendant Hershey’s Motion to Dismiss is DENIED in all other
s/ John E. Jones III
John E. Jones III
United States District Judge
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