Johnson v. PSI Pizza, Inc.

Filing 29

MEMORANDUM AND ORDER (1)The defendants motion to dismiss. (Doc. No. 10), is DENIED with respect to Counts I, II, V and VI of the plaintiffs amended complaint;(2) The plaintiffs claims for punitive damages under Counts V and VI of his amended complaint are DISMISSED; and(3)The defendants motion to dismiss, (Doc. No. 10), is GRANTED with respect to Counts III and IV of the plaintiffs amended complaint.Signed by Magistrate Judge Malachy E. Mannion on 9/25/12. (bs, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
LEE JOHNSON,

:
Plaintiff

PSI PIZZA, INC. d/b/a DOMINO’S
PIZZA and MICHAEL J. NOLAN

CIVIL ACTION NO. 3:11-1698

:

v.

:

(MANNION, M.J.)

:
:

Defendant
:
MEMORANDUM AND ORDER1
Presently before the court is the defendants’ motion to dismiss the
plaintiff’s amended complaint, (Doc. No. 10). The plaintiff, an employee of the
Domino’s Pizza chain of restaurants operated by defendant PSI Pizza, Inc.
(hereinafter “PSI Pizza”), claims sexual harassment by his supervisor,
defendant Nolan, and retaliation when he presented his allegations to
management. (Doc. No. 7). The plaintiff initially filed his charges of
harassment and retaliation before the U.S. Equal Employment Opportunity
Commission (“EEOC”) and Pennsylvania Human Relations Commission
(“PHRC”). In addition, the plaintiff alleges defamation and intentional infliction

1

For the convenience of the reader of this document in electronic
format, hyperlinks to the court’s record and to authority cited have been
inserted. No endorsement of any provider of electronic resources is intended
by the court’s practice of using hyperlinks.

of emotional distress under Pennsylvania law. Finding that the plaintiff has
adequately exhausted administrative remedies but failed to allege additional
state law claims on which relief can be granted, the motion to dismiss will be
DENIED in part and GRANTED in part.

I.

BACKGROUND
The plaintiff first worked for the defendant from February 1999 to July

2010. (Doc. No. 7 at 2). In July 2001, the plaintiff quit his position, but
eventually returned in March 2007 as a delivery driver. (Id.). Defendant Nolan
served as the General Manager of store 4871, where the plaintiff was
employed. (Id. at 3). From February 2009 to July 2009, the plaintiff took a
sabbatical from his position to perform missionary work in Brazil. (Id.). While
the plaintiff was in Brazil, other employees reported comments made by
defendant Nolan such as “Lee is too busy because he is molesting little boys
in Brazil.” (Id.). When the plaintiff returned to work in July 2009 and moved in
with a fellow male employee, defendant Nolan allegedly made comments
suggesting that the two men were homosexuals. (Id.). In addition, defendant
Nolan allegedly made comments regarding employee’s penises and
requested that the plaintiff measure his penis against other employees’. (Id.).
The plaintiff filed a complaint with the EEOC and PHRC on October 27,
2009 stating that he had been subjected to this sexual harassment. (Id. at 1).
The plaintiff also asserts that he made formal complaints to PSI Pizza’s
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Operations Manager, Steve Crum, on March 28, 2010 and April 13, 2010. (Id.
at 4).
The plaintiff claims that on April 14, 2010, the day after his second
complaint to Crum, his hours were cut back from 57 per week to 40 per week
in retaliation for asserting a complaint. (Id.). The plaintiff states that no other
employee’s hours were deceased at that point and that his hours had never
been cut back before that date. (Id.). The plaintiff subsequently filed an
amended complaint with the EEOC and PHRC including both his sexual
harassment and retaliation claims. (Doc. No. 16 at 14). On June 23, 2011, the
plaintiff received a “right to sue” letter from the EEOC. (Doc. No. 7 at 2). On
July 21, 2011, the plaintiff received a similar letter from the PHRC. (Id.).
The plaintiff filed an initial complaint, (Doc. No. 1), before this court on
September 12, 2011. The plaintiff filed an amended complaint on November
10, 2011, (Doc. No. 7).2 The amended complaint comprises six counts: a
hostile work environment under both Title VII of the Civil Rights Act of 1964,
42 U.S.C. §2000e et seq., (hereinafter “Title VII”) and the Pennsylvania
Human Relations Act, 43 P.S. § 951 et seq., (“PHRA”); retaliation under both
Title VII and the PHRA; defamation; and, intentional infliction of emotional
distress. (Doc. No. 7 at 4-9).

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Though filed beyond the 21-day period in which the plaintiff may
amend as a matter of right, the plaintiff’s amendment complaint was filed
before the defendant’s had responded and did not prejudice the defense.
3

On November 18, 2011, the defendants filed the instant motion to
dismiss, (Doc. No. 10). On November 30, 2011, the defendants filed their brief
in support, (Doc. No. 11). On January 6, 2012, the plaintiff filed a brief in
opposition, (Doc. No. 16).3

II.

STANDARD OF REVIEW
The defendant’s motion to dismiss is brought pursuant to the provisions

of Fed. R. Civ. P. 12(b)(6). This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts” language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
be sufficient to “raise a right to relief above the speculative level.” Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of

3

The plaintiff also filed an answer to the defendants’ statement of facts,
(Doc. No. 15). As the defendants have moved to dismiss, however, all facts
presented by the plaintiff will be accepted as true.
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“necessary elements of the plaintiff’s cause of action. Id. Furthermore, in
order to satisfy federal pleading requirements, the plaintiff must “provide the
grounds of his entitlement to relief,” which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544,
127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261
(3d Cir. 1994).

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III.

DISCUSSION
Defendants assert various arguments in their motion to dismiss each of

the six counts in the plaintiff’s amended complaint. Specifically, the
defendants contest that: the plaintiff has not properly exhausted his
administrative remedies, both with respect to the time of filing and named
defendants; the defamation claim is barred by the statute of limitations; the
plaintiff has failed to state a claim for intentional infliction of emotional
distress; and the claim for punitive damages is barred by PHRC.
As an initial matter, it is important to note that the Third Circuit has held
“that the PHRA is the counterpart to the federal anti-discrimination law and
the analysis of the claims is identical.” Fuhrman v. Quill Corp., 2010 WL
411698 *5 (M.D.Pa. Jan. 27, 2010)(quoting Burgh v. Borough Council of
Borough of Montrose, 251 F.2d 465, 469 (3d Cir.2001)(internal quotations
omitted).
Another initial consideration is the defendants’ argument that all claims
under Title VII should be dismissed because the plaintiff failed to establish
that defendant PSI Pizza is an employer as defined by 42 U.S.C. §2000e(b).
(Doc. No. 11 at 8). Though the plaintiff did not lay out specific elements such
as the number of employees, the plaintiff’s amended complaint does assert
that “defendant PSI Pizza, Inc. is an employer within the definition of Title VII
of the Civil Rights Act of 1964.” (Doc. No. 7 at 2). Taking all of the plaintiff’s
assertions as true and noting that the defendants do not contend that PSI
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Pizza in not an employer within the statutory standard, the court will not
dismiss the Title VII claims on these initial grounds.

A. Exhaustion
Generally, an employee must exhaust all administrative remedies before
bringing a lawsuit under Title VII or the PHRA. See Cardamone v. Murray
Management, Inc., 2005 WL 3478320, *2 (M.D.Pa. Dec. 19, 2005)(citing
Waiters v. Parsons, 729 F.2d. 233, 237 (3d Cir.1984). The defendants assert
theories under which they believe the plaintiff has failed to exhaust
administrative remedies. First, the defendants claim that several of the
plaintiff’s claims should be barred because they did not occur during the
appropriate relation-back period for each of his administrative claims. Second,
the defendants assert that because defendant Nolan was not a named party
in the plaintiff’s EEOC complaint, all claims against him should be dismissed
for failure to exhaust.

1. Temporal Exhaustion
The plaintiff asserts that he filed a complaint with the EEOC and PHRC
on October 27, 2009. (Doc. No. 7 at 1). The defendants, therefore, assert that
any claims raised in the instant complaint that occurred after the October 27,
2009 filing and any claims that arose before the relation-back windows of the
relevant statutes are barred. (Doc. No. 11 at 8-10). For an EEOC claim, the
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statute of limitations is 300 days, making the relation-back window January
1, 2009 to October 27, 2009. 42 U.S.C. § 2000e-5(e). The analogous period
for a PHRC claim is 180 days. 43 P.S. §§ 959, 962.
The Third Circuit has noted that “[t]he 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 v.
City of Philadelphia, 562 F.3d 256, 262 (3d Cir.2009) (quoting Antol v. Perry,
82 F.3d 1291, 1296 (3d Cir.1996)(internal citations omitted). The Third Circuit
also stated that the “preliminary requirements for a Title VII action are to be
interpreted in a nontechnical fashion,” however, the aggrieved party “is not
permitted to bypass the administrative process.” Id. at 262-63 (citing
Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir.1976)).
Ultimately, the court 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.” Id. at
263 (citing Ostapowicz,541 F.2d at 398-99)(internal quotations omitted).
The defendants assert that the plaintiff failed to plead any facts
supporting his EEOC and PHRC claims which occurred in the relation-back
period from January 1, 2009 to October 27, 2009. (Doc. No. 11 at 15).
Though many of the plaintiff’s allegations do not include specific dates, at this
stage of the proceeding the court must accept all of the allegations and
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reasonable inferences as true. The plaintiff alleges that sexually harassing
comments suggesting he was a pedophile were made at some point while he
was on a mission trip from February 2009 to July 2009, and therefore clearly
within the 300-day EEOC relation-back period. (Doc. No. 7 at 3). In addition,
the plaintiff asserts that upon his return from the trip he moved in with his
fellow employee and was subjected to further harassment. (Id.). Inferring that
“upon his return” indicates that the employees moved in together at some
point after July 2009 but before the October 2009 complaint was filed clearly
brings these allegations within the relation-back periods of both the EEOC
and PHRC. Therefore, the court finds that the plaintiff pleaded sufficient facts
to support his claims of sexual harassment within the statutes of limitations
to survive this motion to dismiss.
The defendants also claim that any allegations arising from events that
occurred after the filing of his October 2009 complaint could not have been
raised to the administrative agencies and, therefore, not exhausted. The
plaintiff asserts, and attaches to his brief in opposition to the motion, an
amended complaint dual filed before the EEOC and PHRC on May 17, 2010.
(Doc. No. 16 at 10-28). This filing notes both the alleged sexual harassment
that occurred in 2009 and the retaliation claim that materialized when the
plaintiff’s hours were cut on April 14, 2010. (Id.). The court finds that this
undisputedly authentic document establishes that the plaintiff’s October 2009
complaint was properly amended thereby giving the named defendant, PSI
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Pizza, notice of both the sexual harassment and retaliation claims underlying
the instant action. As such the court will deny the defendant’s motion to
dismiss with respect to the sexual harassment and retaliation claims – Counts
I, II, V and VI – of the plaintiff’s amended complaint.

2. Defendant Nolan
The defendants also argue that, regardless of the temporal exhausting
issues, the plaintiff has failed to exhaust all claims with respect to defendant
Nolan because he was not formally named in the EEOC or PHRC complaints.
(Doc. No. 11 at 5-6). The court disagrees. As discussed above, the goal of
exhaustion requirements is to give notice and opportunity to the parties to
resolve disputes before coming to court. Generally, a party who has not been
named in an agency action will not be on notice of the pending action and
claims against them will not be considered exhausted. See Waiters v.
Parsons, 729 F.2d 233, 237 (3d Cir.1984). Nevertheless, “[t]he Third Circuit
has recognized this exception to the exhaustion requirement when the
unnamed party received notice and when there is a shared commonality of
interest with the named party.” Cardamone v. Murray Management, Inc., 2005
WL 3478320, *2 (M.D.Pa. Dec. 19, 2005)(quoting Schafer v. Board of Public
Educ., 903 F.2d 243, 252 (3d Cir.1990)(internal quotations omitted). To
determine the commonality of interest, the Third Circuit adopted four factors:
(1) Whether the role of the unnamed party could through reasonable
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effort by the complainant be ascertained at the time of the filing of the
EEOC complaint; (2) whether, under the circumstances, the interests
of a named party are so similar to the unnamed party that for purposes
of obtaining voluntary conciliation and compliance it would be
unnecessary to include the unnamed party in the EEOC proceedings;
(3) whether its absence from the EEOC proceedings resulted in actual
prejudice to the interests of the unnamed party; (4) whether the
unnamed party has in some way represented to the complainant that its
relationship with the complainant is to be through the named party.
Schafer, 903 F.2d at 252.
As to the first factor, defendant Nolan was clearly known to the plaintiff
and could have been named in the complaint. As to the second factor, the
parties interests are deeply entwined as the defendant Nolan is an employee
of defendant PSI Pizza. As to the third factor, the defendants have not
suggested any actual prejudice to defendant Nolan’s interests. The fourth
factor is irrelevant in this matter as there are no accusations of
misrepresentation. Therefore, though defendant Nolan could have been
named and was not, commonality of interest exists because, his interests are
similar to those of PSI Pizza and he has not experienced any actual prejudice.
Moreover, it should be noted that the parties do not dispute that the defendant
Nolan, though not named in the caption of the complaint, was indeed
identified by name in the complaint and a central actor in the underlying facts.
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Acknowledging that notification is at the heart of the exhaustion requirement,
the court finds that defendant Nolan was on notice and that commonality of
interests exists, therefore the plaintiff has exhausted his administrative
remedies. See Cardamone, 2005 WL 3478320 at *2. As such, the court will
deny the defendants’ motion to dismiss all claims against defendant Nolan.

B. Defamation
The defendants assert that any claims for defamation are barred by a
one-year statute of limitations. (Doc. No. 11 at 6-7). The plaintiff has not
contested these assertions. (Doc. No. 16 at 9). The court agrees that
Pennsylvania’s one-year statute of limitations for defamation claims applies.
See Deangelo Bros., Inc. V. Platte River Ins. Co., 2010 WL 2635983, *7
(M.D.Pa. June 29, 2010)(citing Evans v. Phila. Newspapers, Inc., 411
Pa.Super. 244, 601 A.2d 330, 339 (Pa.Super.1991). Though each allegation
listed in the plaintiff’s amended complaint does not have a specific date
associate with it, the allegations culminate with the reduction of the plaintiff’s
work hours on April 14, 2010. (Doc. No. 7). The plaintiff does not assert any
libelous, slanderous or otherwise defamatory conduct after that date. (Id.).
The plaintiff filed his original complaint in the instant action on September 12,
2011, well outside the one-year statute of limitations. (Doc. No. 1).
Finding that the statute of limitation bars the plaintiff’s claim for
defamation, the plaintiff has failed to present a claim for which relief can be
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granted. As such, the court will dismiss the plaintiff’s defamation claim.

C. Intentional Infliction of Emotional Distress
As the defendants note, the tort of intentional infliction of emotional
distress is not recognized by the Constitution or federal law and is therefore
governed by Pennsylvania state law. See Witmer v. Arthur J. Gallagher & Co.,
2009 WL 2762379, *4 (M.D.Pa. August 31, 2009)(citing Slater v.
Susquehanna County, 613 F.Supp.2d 653 (M.D.Pa. 2009). To establish a
claim for intentional infliction of emotional distress under Pennsylvania law,
“the conduct must be so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized society.” Hoy v. Angelone, 554
Pa. 134, 720 A.2d 745, 754 (Pa.1998) (quoting Buczek v. First Nat'l Bank of
Mifflintown, 366 Pa.Super. 551, 531 A.2d 1122, 1125 (Pa.1987)). In addition,
“[f]or liability to be imposed, there must be knowledge on part of the actor that
severe emotional distress is substantially certain to be produced by his
conduct.” Price ex rel. O.P. v. Scranton School District, 2012 WL 37090, *12
(M.D.Pa. Jan. 6, 2012)(quoting Hoffman v. Memorial Osteopathic Hosp., 342
Pa.Super. 375, 492 A.2d 1382, 1386 (Pa.Super.Ct.1985)(internal quotations
omitted)). This high burden is difficult to satisfy under Pennsylvania law. See
Id. (citing Hoy, 720 A.2d at 753–54. Further, “as a general rule, sexual
harassment alone does not rise to the level of outrageousness necessary to
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make out a cause of action for intentional infliction of emotional distress.” Id.
(citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 (3d Cir.1990)).
Plaintiff argues that the combination of sexually harassing comments
and comments suggesting that the plaintiff was a criminal pedophile rises to
the level of outrageous conduct. The court disagrees. Though the plaintiff
finds these comments insulting and derogatory when made by his manager,
even if distasteful, it cannot be said that they qualify as beyond all possible
bounds of decency nor utterly intolerable in a civilized society. Moreover, the
plaintiff has not demonstrated any intent on behalf of defendant Nolan to inflict
serious emotional distress. Therefore, the court will dismiss the plaintiff’s
claim for intentional infliction of emotional distress against to both defendants.

D. Punitive Damages
As part of his claims under the PHRA, Counts V and VI, the plaintiff
seeks punitive damages. Punitive damages, however, are not available under
the PHRA. See e.g., Gagliardo v. Connaught Laboratories, Inc., 311 F.3d
565, 570 n. 3 (3d Cir.2002) (citing Hoy v. Angelone, 456 Pa.Super. 596, 691
A.2d 476, 483 (Pa.Super. 1990)). The court also notes that the plaintiff’s brief
in reply, (Doc. No. 16), does not present any case law or argument against
this black letter rule. As such, the court will dismiss the plaintiff’s amended
complaint to the extent that it seeks punitive damages for claims arising under
the PHRA.
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THEREFORE, IT IS HEREBY ORDERED, THAT:
(1)

The defendant’s motion to dismiss. (Doc. No. 10), is DENIED with
respect to Counts I, II, V and VI of the plaintiff’s amended
complaint;

(2)

The plaintiff’s claims for punitive damages under Counts V and VI
of his amended complaint are DISMISSED; and

(3)

The defendant’s motion to dismiss, (Doc. No. 10), is GRANTED
with respect to Counts III and IV of the plaintiff’s amended
complaint.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States Magistrate Judge

Date: September 25, 2012
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