BOGASKI v. COUNTY OF ALLEGHENY, PENNSYLVANIA

Filing 18

MEMORANDUM OPINION that 15 Defendant's MOTION to Dismiss filed by COUNTY OF ALLEGHENY, PENNSYLVANIA be denied. Signed by Magistrate Judge Lisa Pupo Lenihan on 09/09/2015. (jmb)

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

JUSTINA BOGASKI,

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Plaintiff,
v.
COUNTY OF ALLEGHENY,
PENNSYLVANIA,
Defendant.

Civil Action No. 15 - 487
Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION
ON DEFENDANT’S MOTION TO DISMISS

I. Summation
For the reasons set forth below, Defendant’s July 30, 2015 Motion to Dismiss (ECF No.
15) will be denied. This case was filed by Complaint of April 12, 2015 (ECF No. 1), and
Amended on July 6, 2015 (ECF No. 11). Plaintiff, who resigned from Defendant’s employment
with the filing of her Complaint, alleges violations of Title VII of the Civil Rights Act of 1964
(“Title VII”) and the Pennsylvania Human Relations Act (“PHRA”). More specifically, she has

filed claims for subjection to a sexually hostile work environment, disparate impact, and
constructive discharge. Defendant County of Allegheny (“Defendant”) argues that is entitled to
dismissal on grounds that Plaintiff failed to sufficiently inform Defendant of her alleged hostile
work conditions, failed to allege conduct by Defendant sufficient to base liability, failed to
exhaust her administrative remedies as to some alleged events/circumstances, failed to allege an
impact on employment “opportunities” as opposed to “conditions”, and failed to allege sufficient
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statistical data as necessary to maintain a disparate impact claim. The Court finds none of
Defendant’s assertions meritorious.

II. Factual and Procedural History
Plaintiff recounts, in a well-written Amended Complaint, a more than two year history of
her employment with Defendant which, if borne out in the evidentiary phase of litigation, is
replete with disturbing instances of (a) gender-based discrimination and retaliation, (c) extensive
personal attacks/vilification, and (c) at best inept, indifferent and/or delinquent institutional
response and at worst institutional disregard for and further violation of constitutionallyprotected rights.1
More specifically, Plaintiff’s Amended Complaint depicts her January, 2013 hiring, as
the sole female “laborer” (employees responsible for park cleaning and maintenance) in
Defendant’s Public Works Department,2 as one in which she was warned of likely sexually
explicit and offensive speech, with no discussion or guidance regarding reporting or
recourse/redress in the event of sexual harassment. That is, Plaintiff describes an initial hiring in
which Defendant essentially presented (a) Plaintiff’s acceptance of employment as a laborer in
its Public Works Department as an assumption of the risk of sexual harassment and (b) violation
of the protections of, e.g., Title VII, as an inherent condition of employment. See Amended
Complaint at 2-3.

Compare Defendant’s Brief in Support of Motion to Dismiss (“Defendant’s Brief in Support”)
at 11 (somewhat troublingly asserting that Plaintiff “merely alleges she is one of the few women
that work for the Department . . . and that there were some missteps in how her . . . sexualharassment claim was handled”).
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Plaintiff further assets she was one of approximately 19 female employees in the Department
of Public Works, which employs over 200 individuals (i.e., less than 10% females).
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Immediately upon beginning work at Defendant’s North Park location, Plaintiff was
subjected to sexually inappropriate and offensive comments by male staff, particularly laborer
Tom Long (“Long”), who in March, 2013 slapped Plaintiff’s buttocks in the presence of coworkers, Country tradesmen and Foreman Jim Kelly (“Kelly”). See id. at 3-4. Plaintiff strongly
objected and she was thereafter subjected to a “campaign of sexual harassment, bullying, verbal
abuse and retaliation” by Long and other employees of Defendant. Specific instances alleged
included vandalization of her property (such as tearing apart her boots and filling them with dirt
and bugs, covering her vehicle with phlegm/spit, blowing dirt/debris into her open car windows),
name-calling (such as referring to Plaintiff as a “bitch”) and “vicious, sexually-based, unfounded
rumors alleging intimate relations with co-workers”. Id. at 4-5. Incidents took place in the
presence of, or were immediately reported to Foreman Kelly or Plaintiff’s Park Supervisor, Gil
Coda (“Coda”). Coda advised Plaintiff to stop using the common area facilities; she also
discontinued any use of her locker for personal items. Although Coda repeatedly
warned/verbally reprimanded the male laborers, and reported the abuse to his supervisors, no
action was taken by Defendant to investigate or address the campaign of sexual and retaliatory
abuse and it continued through Spring, 2014. Id. 5-6. Two separate illustrative incidents of
abuse in Spring, 2014, include alleged plantings of a snake and a blood-soaked feminine pad
inside Plaintiff’s work vehicle.
In the summer of 2014, the Department of Public Works Maintenance Supervisor found
Plaintiff in tears and she described her work conditions. The next day Plaintiff was contacted by
a Department of Human Resources employee and Plaintiff provided extensive information,
which she was assured would be confidential. Details of her conversation were, however,
quickly widespread and the retaliatory assaults (including obscene comments and rumors)

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intensified. Id. at 6-7. A few employees (including Long) were interviewed, no remediatory or
disciplinary actions were taken by Defendant, and on September 30, 2014 Plaintiff received
notification that the investigation was closed.
Within a few days, in early October, 2014, she was contacted by another Human
Resources employee who offered her reassignment to another work site, which Plaintiff declined.
The Human Resources employee responded that Plaintiff’s harassment was her parent’s fault for
“making her so pretty.” Id. at 7-8. Within another few days, Plaintiff filed her Charge of
Discrimination with the Equal Employment Opportunity Commission (the “EEOC” and “EEOC
Charge”), including specification of a “continuing action” and detailing the “ongoing” sexual
harassment and hostile work environment. Id. at 8, 13; see also Plaintiff’s Brief in Opposition to
Defendant’s Motion to Dismiss (“Plaintiff’s Brief in Opposition”) at 3. Approximately two (2)
weeks thereafter, Defendant held a one-day “workplace civility” training for North Park
employees, where Plaintiff was – without prior knowledge and without consent – made to
recount specific instances of sexual harassment in front of all other attendees (i.e., the
exclusively male laborers).
Plaintiff’s abusive working conditions continued and in early November, 2014 she was
re-assigned to work exclusively, and in relative isolation, at the skating rink in the park, with a
reduction in work privileges. Id. at 9; see also Defendant’s Brief in Support at 3 (“Plaintiff was
temporarily reassigned to a different work location . . . .”). In December, 2014, Long –
Plaintiff’s principal victimizer – was reassigned to another park - with weekends off, more
convenient work hours and lighter duties- from whence he continued to spread vicious
statements about Plaintiff.

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In March, 2015, Coda – the only individual who attempted to defend and seek redress for
Plaintiff – was transferred from the North Park facility where he had worked for 37 years, and
Plaintiff was returned there in April (the skating rink was closed), and continued to be subject to
vulgar name-calling, rumors and harassment. Id. at 9-10. Her new supervisor, Rich Daniels
(“Daniels”) directed her to “grow up” and “get over it” and her conditions of employment
worsened. Plaintiff’s anxiety and depression, emotional and physical distress, and panic attacks
under these protracted and severely adverse conditions of employment caused her to request
unpaid leave under the Family and Medical Leave Act. After taking short term leave, she
learned that Supervisor Daniels “promised” others that she would not return, or would be
purposefully subjected to continuing harassment if she did. Id. at 10-11. Contemporaneous with
her April 12, 2015 Complaint,3 she therefore tendered her resignation.
Defendant’s Motion to Dismiss and Brief in Support (ECF No. 16) were filed on July 30,
2015 and Plaintiff’s Brief in Opposition (ECF No. 17) was filed on August 12, 2015.

III. Standard of Review
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).
A complaint must be dismissed for failure to state a claim if it does not allege “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
554, 556 (2007); Ashcroft v. Iqbal, 129 S. Ct.1937, 1949 (May 18, 2009) (“A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

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Plaintiff received her Notice of Right to Sue from the EEOC on March 27, 2015. Id. at 14, Ex.
1.
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inference that the defendant is liable for the misconduct alleged.”). The Supreme Court further
explained:
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. 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. (citing Twombly, 550 U.S. at 556-57).
Recently, the United States Court of Appeals for the Third Circuit aptly summarized the
standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the
Federal Rules of Civil Procedure, a plaintiff must come forward
with “a short and plain statement of the claim showing that the
pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009), a claimant must state a “plausible” claim for
relief, and “[a] claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Although
“[f]actual allegations must be enough to raise a right to relief
above the speculative level,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), a plaintiff “need only put forth allegations
that raise a reasonable expectation that discovery will reveal
evidence of the necessary element.” Fowler, 578 F.3d at 213
(quotation marks and citations omitted); see also Covington v. Int'l
Ass'n of Approved Basketball Officials, 710 F.3d 114, 117–18 (3d
Cir.2013).
Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).4

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The Court of Appeals for the Third Circuit had previously set forth the following two-prong
test to be applied by the district courts in deciding motions to dismiss for failure to state a claim:
First, the factual and legal elements of a claim should be separated.
The District Court must accept all of the complaint's well-pleaded
facts as true, but may disregard any legal conclusions. [Iqbal, 129
S. Ct. at 1949]. Second, a District Court must then determine
whether the facts alleged in the complaint are sufficient to show
that the plaintiff has a “plausible claim for relief.” Id. at 1950. In
other words, a complaint must do more than allege the plaintiff's
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IV. Analysis
A. Hostile Work Environment
Defendant asserts that Plaintiff cannot maintain her claim for a hostile work environment
because her allegations are insufficient to establish a prima facie case for liability where the
alleged harassment was by co-workers and she has “failed to allege facts that would establish”
Defendant’s respondeat superior liablity. Defendant’s Brief in Support at 12 (citing the
elements of hostile work environment claim as set forth in Huston v. Proctor & Gamble Paper
Products Corp., 568 F.3d 100, 104 (3d Cir. 2009)). Defendant further asserts that acts of
harassment occurring after Plaintiff’s EEOC Charge are outside this Court’s jurisdiction because
Plaintiff failed to exhaust her administrative remedies with respect to such acts. Id. at 16.
As Defendant observes, the employer is liable for non-supervisory co-worker harassment
if (a) the employer failed to provide a reasonable avenue for complaint, or (b) it knew or should
have known of the harassment and failed to take prompt and appropriate remedial action. See id.
Defendant’s briefing ignores the Amended Complaint’s assertion that Defendant failed to
provide reasonable policies/procedures for reporting. See Plaintiff’s Brief in Opposition at 13
(quoting Complaint allegation that “Allegheny County failed to offer Plaintiff a reasonable
entitlement to relief. A complaint has to “show” such an
entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the
Supreme Court instructed in Iqbal, “[w]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not ‘show[n]’‘that the pleader is entitled to relief.’” Iqbal, 129 S. Ct. at 1949.
This “plausibility” determination will be “a context-specific task
that requires the reviewing court to draw on its judicial experience
and common sense.” Id.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. Aug. 18, 2009).

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avenue through which to complain . . . and failed to appropriately train . . . employees in policies
or procedures for reporting . . . .”). Moreover, its assertion that it took “prompt and appropriate
remedial action” because Coda “repeatedly warned and reprimanded the male employees” is
patently meritless, particularly in light of Defendant’s acknowledgment that “[g]ranted, Plaintiff
alleges that conduct continued after Coda reprimanded those employees.” Defendant’s assertion
that its response, while not “perfect” was sufficiently “reasonably calculated to prevent further
harassment”5 cannot support dismissal where Plaintiff alleges that her immediate supervisor
issued warnings repeatedly and was without authority to otherwise sanction or address male
laborers’ victimization of Plaintiff, that his warnings were thus not surprisingly ineffectual, and
that his reports to other of Defendant’s employees up the supervisory ladder were ignored.6 The
Court also observes Plaintiff’s allegation that Coda was removed from supervisory contact with
Plaintiff – via his transfer from North Park – shortly prior to Plaintiff’s reassignment.
Defendant’s assertions that its remedial actions subsequent to Plaintiff’s Summer, 2014
reporting to Maintenance Supervisor Mangretta, an acknowledged “management employee”,
were sufficient to warrant dismissal of her claims are similarly meritless where Defendant bases
this ground for dismissal on its promptly beginning an investigation, holding a training session
several months later, temporarily reassigning Plaintiff, reassigning her primary harasser Long,

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See id. at 13.

Compare id. at 13, n. 3 (Defendant’s footnoted assertion that Plaintiff’s complaints to Coda
were inadequate because “there is no allegation that Coda is a management-level employee
whose knowledge could be imputed to” Defendant) with Plaintiff’s allegation that she was
provided no procedures/policies for the warned-of sexual harassment, and reported abuses to her
supervisor, whom she understood to be reporting the sexual harassment up Defendant’s
management chain. See also Plaintiff’s Brief in Opposition at 13 (noting Plaintiff’s averments
that Coda repeatedly reported the abuse to his superiors, was untrained in appropriate handling of
harassment claims, and was given no authority to take any action reasonably calculated to end
harassment).
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and assertedly stopping any further “overt” acts of harassment and rendering any subsequent
harassment insufficiently severe or pervasive to maintain a cause of action. See id. at 13-15.
The allegations of the Amended Complaint are as set forth, supra, and do not comport with
Defendant’s glossed characterizations. See supra (discussing, e.g., Complaint allegations that
Defendant’s “investigation” was inadequate and was closed with no corrective or disciplinary
action, that Plaintiff was blamed for inciting her abuse and harassment through attractiveness,
that Plaintiff was transferred against her wishes to an isolated work environment with reduced
work privileges, that her primary harasser was transferred to substantially more favorable work
privileges/conditions, that harassment of scurrilous, humiliating and vitriolic nature continued,
and that her supportive immediate supervisor Coda was transferred/replaced prior to Plaintiff’s
retransfer in Spring 2015). See also Plaintiff’s Brief in Opposition at 15-16 (noting that
Defendant’s assertions with regard to post-Mangretta events are “contrary to Plaintiff’s proffered
factual averments” and recounting same).
Finally, as Defendant notes, the Third Circuit has held that “the scope of a resulting
private 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.” Hicks v. ABT
Associates, Inc., 572 F.2d 960, 966 (3d Cir. 1978). And where a claim was not specifically
included, the Court may assume jurisdiction over additional charges “reasonably within the
scope of the complainant’s original charges”. Howze v. Jones & Laughlin Steel Corp., 750 F.2d
1208, 1212 (3d Cir. 1984). See also Defendant’s Brief in Support at 5-6. As cogently set forth
in Plaintiff’s Brief in Opposition, the scope of the discrimination claims within the EEOC
Charge and thus properly before the Court is a matter to be “liberally construed”. Plaintiff’s
Brief in Opposition at 5 (citing Hicks, 572 F.2d at 965). Thus, this Court also rejects

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Defendant’s assertion that Plaintiff cannot maintain a claim for any alleged acts of harassment
occurring after the filing of her EEOC Charge.
B. Disparate Impact
Defendant asserts that Plaintiff cannot maintain a claim for disparate impact as a matter
of law because her allegations go to her “conditions of employment”, rather than “hiring,
promotions, [or] layoffs”, i.e., “employment opportunities”, which are the sole basis for a
“disparate impact sexual discrimination” claim as opposed to a disparate treatment claim. See
Defendant’s Brief in Support at 7.7 Defendant further asserts that any disparate impact claim
should be dismissed for failure to provide sufficient statistical data. See id. at 9 (“To show
causation, the plaintiff must present ‘statistical evidence of a kind and degree sufficient to show
that the practice in question has caused’ the alleged prohibited effect.”) (quoting Stagi v. Nat’l
R.R. Passenger Corp., 391 F. App’x 133, 136 (3d Cir. 2010)).
First, it appears to this Court that Defendant misapprehends the distinction between
disparate impact and disparate treatment claims. The distinction Defendant asserts as between
Title VII’s §2000e-2(a)(1), prohibiting the failure or refusal to hire or the discharge of an
individual, or other discrimination against an individual with respect to compensation, terms,
conditions or privileges of employment owing to membership in a protected class (which
Defendant labels “disparate treatment”), and §2000e-2(a)(2), prohibiting limitation, segregation
or classification of employees or applicants in any way which would deprive/tend to deprive a
protected individual of employment opportunities or affect his/her status as an employee (which
Defendant labels “disparate impact”), is not borne out by the statutory provisions or
interpretation thereof.
See also id. at 9 (“Plaintiff’s allegations do not establish a prima facie case of disparate-impact
discrimination because there is no hiring or promotion policy or practice at issue.”).
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Defendant asserts that Plaintiff’s allegations regarding its faulty sexual harassment
policies/practices do “not allege the existence of a facially neutral policy or practice that has a
disparate impact on a protected group’s employment opportunities or employee status.”
Defendant’s Brief in Support at 8. It appears to this Court, however, that while the statutory
provisions cited describe forms of civil rights employment violations, disparate treatment is a
method of analyzing and evaluating a Title VII claim through the plaintiff’s evidence of
subjective intent, while disparate impact is a method utilizing statistical evidence of impact
regardless of evidence of intent. See, e.g., Lewis v. City of Chicago, 560 U.S. 205, 211 (2010)
(“Congress allowed claims to be brought against an employer who uses a practice that causes
disparate impact, whatever the employer’s motives . . . .”); Healey v, Southwood Psychiatric
Hosp., 78 F.3d 128, 131 (3d Cir. 1996) (observing that “[i]n bringing a Title VII sexdiscrimination claim, two different theories of liability are available to the plaintiff: disparate
treatment and disparate impact” and that “[u]nder a disparate impact theory, liability is
established when a facially neutral policy affects members of a protected class in a significantly
discriminatory manner”); Ferguson v. E.I. duPont de Nemours & Co., 560 F. Supp. 1172, 1194
(D. Del. 1983) (“It is now well settled that a plaintiff may establish liability under Title VII
under two distinct legal theories: first, disparate treatment which focuses upon the discriminatory
motive underlying the treatment of members of protected classes . . .; and second, disparate
impact which focuses upon the outcome regardless of how benign the motive underlying the
treatment might have been . . . . The disparate impact theory is applicable whenever ‘practices
that are facially neutral in their treatment of different groups in fact fall more harshly on one

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group than another and cannot be justified by business necessity.’ ”) (extensive citations
omitted).8
In addition to the Court’s rejection, for reasons set forth above, of Defendant’s asserted
entitlement to dismissal of this claim based on the scope of the statutory provisions or
Defendant’s “opportunities” or “conditions” distinction, the Court observes that Plaintiff has
alleged disparate impact in hiring and in termination (i.e., effects within Defendant’s own
disparate impact definition).
More specifically, Plaintiff expressly alleges that the gross under-representation of
women in Defendant’s Department of Public Works reflects “the impact of inadequate
harassment complaint and investigation policies” disadvantaging women, and that Defendant’s
business practices “undermin[e] female employees’ abilities to seek redress for . . . or to curtail .
. . harassment” and “allows [harassers] to continue without accountability”. She also expressly
alleges and reiterates through discussion of Defendant’s objectionable policies and practices that
“fear of inadequate policies and the failure in enforcement in minority protections serve as a
barrier to . . . entry in a field where less than 10% of the employees are female”. Amended
Complaint at 17-20. See also id. at 22 (“The aforementioned failure[ ] . . . disparately impacts
women as it enforces the status quo vis-à-vis statistically imbalanced gender-based employment
demographics by serving as a barrier to entry for female candidates . . . .”); Plaintiff’s Brief in
See also EEOC Compliance Manual (“EEOCCM”), Section 10, Employment Discrimination,
2006 WL 4672890 (noting, in discussion of discrimination in compensation (i.e., a condition, not
opportunity, of employment) that disparate impact analysis provides “another analytical tool for
determining whether compensation discrimination has occurred”); Plaintiff’s Brief in Opposition
at 8-10 (observing that disparate impact discrimination is not limited to employment
opportunities or employment status, or a “hiring or promotion policy or practice as Defendant
claims”; rather, it is established if the plaintiff “demonstrates that a respondent uses a particular
employment practice that cause a disparate impact on the basis of [a protected class] and the
respondent fails to demonstrate that the challenged practice is job related for the position in
question and consistent with business necessity”) (quoting 47 U.S.C. § 2000e-2(k)(1)(A)(i)).
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Opposition at 12. That is, Plaintiff presents, in light of the specific allegations, the facially
plausible assertion that Defendant’s (a) facially-neutral paucity of policies or procedures for
hostile work environment concerns/circumstances, (b) unapologetic view of potential/actual
harassment as a condition of employment, and/or its (c) “blame the victim”, take-it-or-leave-it
attitude to redress, deters/bars individuals unwilling to subject themselves to violations of their
constitutionally protected rights from employment within the Public Works Department of the
Defendant County, with a resultant disparate adverse effect on a protected group. Plaintiff also
alleges that the continued, intolerable degree of sexual and retaliatory abuse facilitated and
unaddressed owing to Defendant’s policy and procedural failures ultimately resulted in her
constructive discharge. Id. at 23-24. Compare Defendant’s Brief in Support at 9 (asserting that
Defendant’s policies “did not impact Plaintiff’s employment opportunities in any way” because
she “did not get fired and was not denied a promotion, and her employment status . . . remained
unchanged”).
Finally, Defendant’s assertion of entitlement to dismissal on the basis of Plaintiff’s
failure to evidence supporting statistical data that shows a significant disparity as to female
employees caused by its policies is entirely unfounded. As Defendant is or should be aware, an
ultimate standard of proof, including that regarding the form/nature/specificity and quantity of
statistical evidence in a disparate impact claim, simply does not provide grounds, via application
of that standard to the Complaint allegations, for grant of a Motion to Dismiss. Compare
Defendant’s Brief in Support at 10 (discussing a plaintiff’s “burden” of proof as requiring
statistical disparity sufficient to raise “an inference of causation”) with Plaintiff’s Brief in
Opposition at 10 (“The Plaintiff does not need to definitively establish each element of a prima
facie showing at the motion to dismiss stage, rather the Court should determine whether the

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facts, if true, plausibly state a cognizable claim for relief.”). See also, e.g., United States of
America v. Commonwealth of Pennsylvania, No. 1:14-CV-1474 (Rambo, J., U.S. Dist. M.D. Pa.
May 21, 2015) (discussing the “much less onerous” burden a disparate impact plaintiff must
meet to survive a motion to dismiss and noting that “under the Federal Rules of Civil Procedure,
an evidentiary standard is not a proper measure of whether a complaint fails to state a claim”).9
C. Constructive Discharge
Defendant asserts, as it does with respect to Plaintiff’s post-EEOC filing hostile work
environment allegations, that Plaintiff may not include in her pleadings before this Court
allegations regarding events occurring after her EEOC Charge because she has failed to exhaust
her administrative remedies, and these matters therefore remain outside this Court’s jurisdiction.
See Defendant’s Brief in Support at 6 (“Since Plaintiff did not raise the issue of constructive
termination in her EEOC Charge, this Court has no jurisdiction over such a claim unless it is
fairly within the scope [of the Charge or investigation] . . . . Plaintiff was working when she
received her Right to Sue Letter . . . Therefore, Plaintiff could not have included a claim for
constructive termination in her EEOC charge, nor could such a claim fall within the scope of any
investigation . . . . As such, Plaintiff’s claim . . . cannot fall within the scope of this Court’s
jurisdiction.”). The assertion is as erroneous as to Plaintiff’s constructive discharge claim as it is
to her hostile work environment claim, and for the same reasons. See supra. Moreover, as
Plaintiff observes, the United States Supreme Court has provided that a constructive discharge
claim “stems from, and can be regarded as an aggravated case of, sexual harassment or hostile

The Court further notes the inappropriateness of Defendant’s assertion of Plaintiff’s failure to
allege specific information presently within Defendant’s knowledge and control as grounds for
pre-discovery dismissal. See Defendant’s Brief in Support at 10 (asserting failure to “allege the
number of sexual harassment complaints generally or those where the complainant was adversely
affected by the County’s allegedly inadequate policy”).
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work environment.” Plaintiff’s Brief in Opposition at 4 (citing Pennsylvania State Police v.
Suder, 542 U.S. 129, 146 (2004)).10
Plaintiff complained to the EEOC of ongoing sexual discrimination, and her constructive
discharge was the alleged result of a hostile work environment so severe that a reasonable person
would be compelled to resign, i.e., it arose from the same core grievance and is fairly within the
scope of the EEOC Charge of ongoing discriminatory actions. See id. at 6-7 (articulately
observing that “Plaintiff complains of ongoing discrimination, and later alleges facts arising after
filing with the EEOC which support that continuing discrimination was never mitigated or
abated. . . . Defendant could have foreseen that Plaintiff would eventually be compelled to resign
. . . . [T]he constructive discharge . . . and the concomitant claim . . never would have arisen but
for the hostile work environment Plaintiff suffered and complained of to the EEOC.”).
Accordingly, the Court rejects Defendant’s assertion that she has failed to meet the jurisdictional
prerequisites for this cause of action, or any other contained in the Amended Complaint.

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In addition, the Third Circuit previously expressly held that there is no separate administrative
filing prerequisite to a claim of retaliatory discharge where the plaintiff-employee’s EEOC
Charge has brought claims for Title VII violations and retaliation. Id. at 5-6 (quoting Walters v.
Parsons, 729 F.2d 233 (3d Cir. 1984) (noting that where “discriminatory actions continue after
the filing of an EEOC complaint, . . . the purposes of the statutory scheme are not furthered by
requiring the victim to file additional EEOC complaints and re-start the . . . waiting period”).
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V. Conclusion
For the reasons aforesaid, Defendant’s Motion to Dismiss (ECF No. 15) will be denied in
accordance with this Court’s Order on this date.

Dated: September 9, 2015

By the Court:

Lisa Pupo Lenihan
United States Magistrate Judge
cc: Counsel of record

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