Opinion
Civil Action No. 01-2029
June 4, 2002
Harry R. Ruprecht, Esq., Pittsburgh, PA, Plaintiffs' Counsel
USS LLC, Mary Beth Taylor, Esq., Pittsburgh, PA, Defendant's Counsel
OPINION and ORDER OF COURT
Pending before the Court is a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons discussed below, the Motion is granted in part and denied in part.
I. INTRODUCTION
Unless otherwise noted, the facts in this section are taken from Plaintiffs' Complaint.
Kristen L. Fortier and Michael David Fortier, husband and wife, were both employed by Defendant U.S. Steel Group ("U.S. Steel") in Pittsburgh, Pennsylvania. Mrs. Fortier began working with Defendant as a payroll clerk on July 21, 2000. Shortly thereafter, Plaintiff informed her supervisor that she was pregnant and that she planned to breast feed her child. Her immediate supervisor, Maureen Moslen, and the head of the payroll office, Rich Prihode, began harassing her about her intention to breast feed and advised her against it, warning that it might interfere with her work performance. (Motion to Dismiss, "Mot. Dismiss," Docket No. 2, at Exh. A, EEOC Charge of Discrimination filed by Kristen L. Fortier, February 15, 2001, "EEOC Charge.")
According to Defendant, as of July 2, 2001, USX Corporation was reorganized. The successor corporation, United States Steel LLC, includes the former U.S. Steel Group. (Motion to Dismiss, Docket No. 2, at 1 n. 1.)
Generally, a court will not consider documents outside the pleadings when deciding a motion to dismiss without advising the parties of its intention to do so and converting the motion to a motion for summary judgment. Fed.R.Civ.P. 12(b). However, a motion to dismiss under Rule 12 is not converted to a motion for summary Judgment under Fed.R.Civ.P. 56 if the defendant attaches an "undisputedly authentic document . . . if the plaintiff's claims are based on the document."Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, the court may always accept matters of public record. City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 259 (3d Cir. 1998); see also 5A Charles Alan wright Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990).
According to the EEOC Charge, Mrs. Fortier was called into a meeting with Ms. Moslen, Mr. Prihode and the U.S. Steel manager of human resources on August 30, 2000, without warning, and asked to resign. Plaintiff claims that she had not received any negative criticism of her work until that meeting, when she was accused of having misfiled an important microfiche. If she did not resign voluntarily, she was told that she would be evaluated for two weeks, after which a decision would be made regarding her continued employment. Mrs. Fortier refused to resign voluntarily, left the office, and never returned to her position.
Michael Fortier had been employed by U.S. Steel as an internal auditor since May 1999. Despite his good work record, he was told on September 19, 2000, that his employment was also being terminated. Mr. Fortier alleges that his termination was the result of his support of his wife's decision to breast feed and because he knew that her termination was the result of illegal employment discrimination by Defendant.
B. Procedural History
Mr. and Mrs. Fortier filed suit in this Court on October 29, 2001, alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (the "PHRA".) (Complaint, "Compl.," ¶ 2.) Ms. Fortier claims that she was discriminated against and harassed by Defendant directly as a result of her decision to breast feed her child. Compl., ¶¶ 11-12.) Mr. Fortier claims that his termination was a result of his opposition to Defendant's unlawful employment practice in dismissing Mrs. Fortier. (Compl., ¶ 14.)
On December 21, 2001, U.S. Steel filed a Motion to Dismiss Pursuant to Rule 12(b)6 of the Federal Rules of Civil Procedure (Docket No. 2), arguing that the complaint should be dismissed in its entirety because neither Plaintiff has established a prima facie case of sexual harassment, discrimination or retaliation and because Mr. Fortier failed to exhaust his administrative remedies prior to filing suit in this Court.
C. Jurisdiction and Venue
Jurisdiction is based on the Fortiers' claims under Title VII, 42 U.S.C. § 2000e-5(f)(3). This Court is empowered to exercise supplemental jurisdiction over the PHRA claim pursuant 28 U.S.C. § 1367. Venue is appropriate in this Court inasmuch as the events giving rise to the claims all occurred within this judicial district. 28 U.S.C. § 1391(b).
II. STANDARD OF REVIEW
In deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), all factual allegations and all reasonable inferences therefrom must be accepted as true and viewed in a light most favorable to the plaintiff.Colburn v. Upper Darby Twp., 838 F.2d 663, 665-666 (3d Cir. 1988). In ruling on a motion to dismiss, the court must decide whether there are sufficient facts pled to determine that the complaint is not frivolous, and to provide the defendants with adequate notice to frame an answer.Id. at 666. A motion to dismiss will be granted only if it appears that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957).
III. LEGAL ANALYSIS
A. Claims by Kristen L. Fortier
Although Mrs. Fortier does not identify in her Complaint the specific types of claims she is bringing, she states in response to the Motion to Dismiss that the issue is "whether the Plaintiffs stated a cause of action for sexual discrimination and sexual harassment when a woman, while pregnant, announces that she intends to continue working and breast feed her child, and when said woman is treated disparately and forced to resign." (Plaintiffs' Response to Defendant's Motion to Dismiss, "Plfs.' Response," Docket No 7, at unnumbered page 6.) Elsewhere in the Response, Plaintiffs contend that they were terminated because of their viewpoint on breast feeding their child. (Id. at 9.) Finally, although no reference to the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) ("PDA"), appears in the Complaint, they also contend in the Response that the PDA applies to their claims because Mrs. Fortier's pregnancy and decision to breast feed are the "heart and soul" of their case. (Id.) Based on these somewhat vague arguments and viewing the Complaint in the light most favorable to Plaintiffs, I will assume that Mrs. Fortier is claiming (a) sexual and/or pregnancy discrimination, (b) sexual harassment, and (c) disparate treatment in violation of Title VII.
The same claims also establish purported violations of the PHRA. Because the Third Circuit Court of Appeals has determined that the PDA and PHRA are to be analyzed consistently with the standards applied in a Title VII analysis, the following discussion refers generally to Title VII but will apply to all three statutes. See, e.g., Gomez v. Allegheny Health Services. Inc., 71 F.3d 1079, 1084 (3d Cir. 1995), cert. denied, 518 U.S. 1005 (1996) (PHRA and Title VII are "construed consistently");Briody v. American Gen. Fin. Co., CA 98-2728, 1999 U.S. Dist. LEXIS 8405 (E.D. Pa. May 28, 1999) (applying the same analysis to claims brought under Title VII, PDA, and PHRA).
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 provides that:
It shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a)(1).
In 1978, Congress amended Title VII through the Pregnancy Discrimination Act which explicitly expands the terms "because of sex" or "on the basis of sex" as used in Title VII to include the concepts "because of or on the basis of pregnancy, childbirth, or related medical conditions." Moreover, the PDA provides that"women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k) As a result of the PDA, there are now two prongs of sex discrimination, i.e., gender and pregnancy. Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1491 (D. Col. 1997).
The Supreme Court recently reiterated its position that in cases involving discrimination, no heightened pleading standard must be satisfied. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, ____, 122 S.Ct. 992, 997 (2002). To withstand a motion for summary judgment, a plaintiff relying on circumstantial evidence of discrimination must present a prima facie case showing that (1) she is a member of a protected class; (2) she was qualified for the job in question; (3) she suffered an adverse employment decision; and (4) circumstances surrounding the adverse decision support an inference of discrimination. However, this requirement need not be satisfied at the point of a motion to dismiss.Swierkiewicz, 122 S.Ct. at 996-97, citinq McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). Instead, the plaintiff must only present the "short and plain statement of the claim showing that the pleader is entitled to relief" established by Fed.R.Civ.P. 8(a)(2). Swierkiewicz, 122 S.Ct. at 998. Thus, Defendant's argument that Mrs. Fortier's claims must be dismissed because she has not stated a prima facie claim in her complaint must fail.
Defendant would have the scope of Plaintiff's claims limited to her allegations regarding her intent to breast feed her child when she returned to work after its birth, and argues that actions by employers either to limit leave associated with breast feeding or to prohibit breast feeding and related activities during the work day do not violate either Title VII or the PDA. (Memorandum of Law in Support of Mot. Dismiss, Docket No. 4, at 5-8.) However, when the Complaint is read on a broader scale, I find that Mrs. Fortier has stated a claim for discrimination or harassment based on her status as a pregnant woman. Prior to the announcement of her pregnancy and her intent to breast feed, she had received no criticism about her work as a payroll clerk. After the announcement, she was warned by her supervisor that breast feeding might interfere with her work performance. Moreover, she alleges that she was subjected to an adverse employment decision when shortly after her announcement, she was given the choice of voluntarily resigning or being put on de facto probation. Therefore, I conclude that Plaintiff has stated a claim for pregnancy discrimination and/or sexual harassment with sufficient factual assertions to survive the Motion to Dismiss.
However, to the extent that Mrs. Fortier is attempting to present a disparate treatment claim in her allegation "women with babies who do not breast feed are treated more favorably by Defendant than women with newborns who do breast feed" (Compl., ¶ 16), such a claim must fail. Even if "women who breast feed" were a class protected by either Title VII or the PDA (a question I do not address at this time), Mrs. Fortier was only a potential member of such a class when she left her employment. That is, because she had never breast fed her child nor asked for any accommodation to do so, she had not suffered any disparate treatment. Furthermore, she could have subsequently changed her mind about breast feeding or been prevented by circumstances from doing so and thus would never have become a member of that class. Therefore, she has not stated a claim of disparate treatment as it relates to the act of breast feeding.
B. Claims by Michael David Fortier
Mr. Fortier claims that the decision to terminate his employment by U.S. Steel was made in retaliation for his support of his wife's declaration of intent to breastfeed their child and because he knew she had been unlawfully terminated. (Compl., ¶ 14.) Retaliation for engaging in the protected activity of opposing "any practice made an unlawful employment practice" is prohibited by both Title VII at 42 U.S.C. § 2000e-3(a) and by the PHRA at 43 P.S. § 955(d). It is the usual practice to analyze retaliation claims brought under Title VII and the PHRA consistently. Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). However, I do not reach that analysis because I agree with Defendant that Mr. Fortier has not shown that he exhausted his administrative remedies prior to filing suit.
Mr. Fortier claims to have complied with all administrative prerequisites by filing charges with both the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"). (Compl., ¶ 3.) One of those prerequisites is that a charge of discrimination must be filed within 300 days of any alleged illegal practice, including retaliation. Rush v. Scott Specialty Gases, 113 F.3d 476, 480 (3d Cir. 1997), citing 42 U.S.C. § 2000e-5(e)(1). Mr. Fortier claims that he was discharged on September 19, 2000, so the period in which to file his claim with the EEOC would have ended on July 15, 2001.
It is plain from the face of Mrs. Fortier's charge of discrimination which was timely filed on February 15, 2001, that her husband's retaliation claim was not included therein. In response to Defendant's argument that Mr. Fortier did not file a charge on his own behalf, Plaintiff states that he contacted the EEOC, received a questionnaire, filled it out and returned it, but somehow the Commission failed to process it. (Plfs.' Response at 10.) In support of that statement, he attaches a copy of a fax from himself to Alan Archer, an EEOC investigator, a memo from Mr. Archer to himself, and a copy of a handwritten EEOC intake questionnaire. (Plfs.' Response, Exh. 2.) Curiously, neither of the memos is dated, although the intake questionnaire shows a date of May 4, 2001, which appears to have been altered. The fax transmission itself is dated October 10, 2001, well after the deadline for filing a claim with the EEOC or PHRC. Even if Mr. Fortier completed the questionnaire in May 2001, the date on it is not evidence that it was submitted to the EEOC at that time. If Mr. Fortier and the EEOC investigator were still exchanging faxes regarding his claim in October 2001, one might logically conclude that even if a charge of discrimination were filed, it was not submitted within the required 300-day period which ended in July.
Mr. Fortier's claim of retaliation in violation of Title VII and the PHRA is therefore dismissed for failure to exhast administrative remedies.
ORDER OF COURT
And now, this 4th day of June, 2002, after careful consideration and for the reasons set forth in the Opinion accompanying this Order, it is ordered that the Motion to Dismiss by Defendant United States Steel LLC (Docket No. 3) is denied with regard to the claims brought by Kristen Fortier for pregnancy discrimination and sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. The claims of Michael Fortier for retaliation in violation of Title VII and the PHRA are dismissed in their entirety for failure to timely exhaust his administrative remedies.