DEVINE v. TRUMBULL CORPORATION

Filing 23

MEMORANDUM OPINION re 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by TRUMBULL CORPORATION. Signed by Chief Judge Joy Flowers Conti on 1/23/17. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KAREN DEVINE,
Plaintiff,
v.
TRUMBULL CORPORATION
Defendant.

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16-1547

MEMORANDUM OPINION
Conti, Chief District Judge.

Defendant Trumbull Corporation (“Trumbull” or “Defendant”) is a heavy-highway
construction contractor with more than 500 employees. Plaintiff Karen Devine (“Devine” or
“Plaintiff”) was a journeyman concrete mason and finisher (one of only four women), who was
employed by Trumbull (except for seasonal layoffs) from July 2005 until she was terminated.
(Amended Complaint, ECF No. 9). Plaintiffs’ amended complaint asserts three counts against
Trumbull: Count I – sex discrimination under Title VII; Count II – retaliation under Title VII;
and Count III – hostile work environment. Trumbull filed a motion to dismiss or strike Devine’s
amended complaint (ECF No. 10). The court held a hearing and argument on the motion on
January 18, 2017. As discussed below and on the record at the hearing, the motion will be
granted in part with respect to the scope of the claims asserted in the amended complaint and
denied in all other respects.

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Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” A complaint must
plead facts sufficient at least to “suggest” a basis for liability. Spruill v. Gillis, 372 F.3d 218, 236
n.12 (3d Cir. 2004). “Specific facts are not necessary; the statement need only ‘give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (citations omitted). As noted by the Third Circuit Court of
Appeals:
Context matters in notice pleading. Fair notice under Rule 8(a)(2) depends on the
type of case-some complaints will require at least some factual allegations to
make out a “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.”
Indeed, taking [Bell Atlantic Corp. v. Twomblv, 550 U.S. 544, 555 (2007)] and the
Court's contemporaneous opinion in Erickson v. Pardus, 127 S.Ct. 2197 (2007),
together, we understand the Court to instruct that a situation may arise where, at
some point, the factual detail in a complaint is so undeveloped that it does not
provide a defendant the type of notice of claim which is contemplated by Rule 8.
Put another way, in light of Twombly, Rule 8(a)(2) requires a “showing” rather
than a blanket assertion of an entitlement to relief. We caution that without some
factual allegation in the complaint, a claimant cannot satisfy the requirement that
he or she provide not only “fair notice,” but also the “grounds” on which the
claim rests.
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (citations omitted).
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). While a
complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss,
a complaint must provide more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). A “formulaic recitation of the elements of a cause of action will not do.” Id.
(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to

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raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is
plausible on its face.” Id.
Two working principles underlie Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
First, with respect to mere conclusory statements, a court need not accept as true all the
allegations contained in a complaint. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555.)
Second, to survive a motion to dismiss, a claim must state a plausible claim for relief. Id. at 679.
“Determining whether a complaint states a plausible claim for relief will ... be a content-specific
task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
Discussion
Defendant’s motion to dismiss raises two main issues: (1) the timeliness of the EEOC
Charge; and (2) the scope of the EEOC Charge and the claims in this case. Defendant also asks
the court to strike some of the averments of the amended complaint.

1. Timeliness of EEOC Charge
Defendant argues, first, that the EEOC Charge was untimely because it was not filed
within 300 days of the alleged discrimination. Plaintiff alleges that she was terminated from her
job on June 2, 2012. On January 2, 2013, acting pro se, she faxed a seven-page Intake
Questionnaire to the EEOC. (Amended Complaint, Exh. 1, ECF No. 9-1). On the last page of
the form she checked both Box 1 (to file a charge of discrimination) and Box 2 (to talk to an
EEOC employee before deciding whether to file a charge). On the cover sheet, Plaintiff stated
that she is not good at filling out forms, and wanted to get her “papers in on time.” (ECF No. 9-1
at 1). On March 10, 2013, Devine sent a follow-up letter to the EEOC, advising that she wanted

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them to move forward on her case. (ECF No. 17-1). The EEOC prepared a Form 5 to formalize
her charge, which Devine signed on June 10, 2013. The EEOC Charge listed a termination date
of April 30, 2012. ECF No. 11-1. Devine, acting pro se at that time, did not correct that date.
As part of EEOC’s investigation, Trumbull submitted a position statement that recognized that
Devine had worked on a project until June 1, 2012, but nevertheless contended that the last date
of alleged discrimination in the EEOC Charge was April 30, 2012, such that Devine’s charge
was untimely filed. ECF No. 17-2 at 6.
Defendant argues: (1) the Intake Questionnaire and the March 10, 2013 letter cannot be
viewed as the “charge” because they did not clearly ask the EEOC to take action; and (2) the date
of the last discriminatory act alleged in the official EEOC Charge was April 30, 2012. Trumbull
argues that the Intake Questionnaire in this case is ambiguous because Devine checked both
boxes. Thus, Trumbull calculates the relevant time as running from April 30, 2012, to June 10,
2013 (the date the formal EEOC Charge was signed), a total of 406 days.
In response, Plaintiff argues that: (1) the Intake Questionnaire must be interpreted
broadly; (2) at this stage of the case, all reasonable inferences must be drawn in her favor; and
(3) she is entitled to particular deference because she was pro se and has ADHD. Plaintiff
contends that the Intake Questionnaire asked the EEOC to take action, particularly when viewed
in conjunction with the cover sheet and March 10, 2013 letter and that her actual termination
date was June 2, 2012. Thus, Devine calculates the relevant time as running from her
termination on June 2, 2012, to Janaury 2, 2013 (the date she submitted the Intake
Questionnaire), a total of 214 days.
The court concludes that reviewing the allegations in the light most favorable to Plaintiff,
the charge was timely filed. An Intake Questionnaire may be considered as a “Charge.” In

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Hildebrand v. Allegheny Cty., 757 F.3d 99, 112–13 (3d Cir. 2014), the court of appeals
explained:
An EEOC filing constitutes a charge of discrimination if it satisfies the
requirements of 29 C.F.R. § 1626.6,1 and can “reasonably [be] construed as a
request for [the EEOC] to take remedial action to protect the employee's rights.”
Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402, 128 S.Ct. 1147, 170 L.Ed.2d
10 (2008). In Holowecki, the Supreme Court adopted a “permissive”
interpretation of the charge requirement, explaining that a “wide range of
documents,” including an intake questionnaire, “may be classified as charges.” Id.
at 402, 128 S.Ct. 1147.
In Hildenbrand, the court of appeals stated that “an employee who completes the Intake
Questionnaire and checks [the box that requests the EEOC to take action] unquestionably files a
charge of discrimination.” Id. at 113.
Here, the Intake Questionnaire faxed January 2, 2013 constitutes a “charge” because
Devine checked the box that requested the EEOC to take remedial action. At this stage of the
case, all reasonable inferences must be drawn in favor of Plaintiff. In addition, the cover sheet
and Devine’s follow-up letter on March 10, 2013 indicate that she expected the EEOC to take
action.
With respect to the date of Plaintiff’s discharge, the amended complaint clearly alleges a
discriminatory discharge on June 2, 2012. Even though the formal EEOC Charge referred to a
discharge date of April 30, 2012, it appears undisputed that the reference was erroneous. In any
event, the conflicting dates create a fact dispute which at this stage of the case must be construed
in the light most favorable to Plaintiff.
In sum, the charge of discrimination was timely filed.

Hildebrand was an age discrimination case under the ADEA. The relevant regulation in
this Title VII case is 29 C.F.R. § 1601.12a.
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2. Scope of Claims
Defendant argues that Plaintiff is now pursuing claims in this litigation that are beyond
the scope of her EEOC Charge. In response, Plaintiff represents in her brief that she is not
asserting many of the claims that Defendant regards as beyond the scope of the charge, namely, a
quid pro quo harassment claim, stand-alone disparate pay and benefits claims and a “failure to
rehire” claim. Accordingly, the motion to dismiss is granted to the extent that the amended
complaint could be construed to cover such claims.
Defendant’s motion is denied with respect to the remaining claims. In Hicks v. ABT
Assoc., Inc., 572 F.2d 960 (3d Cir. 1978), the court of appeals recognized that the lawsuit is
“defined by the scope of the EEOC investigation which can reasonably be expected to grow out
of the charge of discrimination.” Id. at 966 (citations omitted). A review of the EEOC Charge
filed by Devine reflects that she clearly alleged ongoing sexual harassment and a hostile work
environment, retaliation for bringing complaints to management, and a wrongful discharge. The
EEOC Charge alleges disparate treatment regarding bringing cars to the job site and working
hours. A reasonable investigation would encompass work conditions, making it plausible that
access to tools would have been encompassed in the investigation. Under these circumstances,
that claim has been exhausted and is cognizable.
In summary, Trumbull’s motion to dismiss is granted with respect to: (1) a quid pro quo
harassment claim relating to Catena; (2) stand-alone disparate treatment claims involving pay
and benefits; and (3) a “failure to rehire” claim. The motion is denied in all other respects.
3. Motion to Strike
Trumbull is asking the court to strike all the allegations in the amended complaint that are
beyond the scope of the EEOC Charge, specifically, paragraphs 24-27, 33, 37 and 38 (except as

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to Shoup), 40, 44, 47, 48, 52-55, 56 77, and 87. Plaintiff contends that these averments are all
relevant to describe the hostile work environment and retaliation.
In Tauro v. Baer, Civ. No. 08-1545, 2009 WL 2410952, at *1 (W.D. Pa. Aug. 4, 2009),
the court summarized the applicable legal standards:
Motions to strike pleadings are governed by Federal Rule of Civil Procedure
12(f). “Upon motion made by a party ... or upon the court's own initiative at any
time, the court may order stricken from any pleading any insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P
12(f) (emphasis added). A decision to grant or deny a motion to strike a pleading
is vested in the trial judges's sound discretion. Snare & Triest v. Friedman, 169 F.
1, 6 (3d Cir. 1909); Canady v. Erbe Elektromedizin GMBH, 307 F.Supp.2d 2
(D.D.C. 2004). Motions to strike are generally disfavored by courts because they
propose a drastic remedy. Canady, 307 F.Supp.2d at 7–8.
Motions to strike are disfavored. As explained above, there should not be a blanket striking of
the allegations of post-April 30, 2012 discrimination, because that conduct is reasonably within
the scope of the EEOC’s investigation. The remainder of the motion to strike will also be denied
because the allegations are relevant to the background of the hostile work environment claim.
An appropriate order will be entered.

Dated:

January 23, 2017

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge

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