Opinion
Civil No. 3:19-CV-1662
08-13-2020
MEGAN DOLBIN, Plaintiff, v. TONY'S LLC, et al., Defendants.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Introduction
This case presents us with an employment dispute between the plaintiff, Megan Dolbin, her former employer, Anthony Riccio, and the two businesses that Mr. Riccio owns and operates. According to Dolbin's amended complaint, Mr. Riccio owns and operates Tony's Meat Market as a sole proprietor and Tony's LLC which owns and operates Tony's Restaurant. (Doc. 9, ¶¶ 5-7). Dolbin began working for Mr. Riccio at Tony's Meat Market in February of 2015 as its General Manager, eventually expanding her employment to also work at Tony's Restaurant after it opened in March of 2017. (Id., ¶¶ 27-28).
Throughout her employment, Dolbin alleges that Mr. Riccio subjected her to unwanted sexual advances. (Id., ¶¶ 34-50). Indeed, a few months after she began working at Tony's Restaurant, Dolbin claims that she was terminated after refusing to engage in oral sex with Mr. Riccio. (Id., ¶¶ 46-50). Dolbin asserts that in terminating her employment, the defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII") and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§ 951 et seq. Dolbin also brings claims under the federal Fair Labor Standards Act, 29 U.S.C. § 201 ("FLSA") and the Pennsylvania Minimum Wage Act, 43 P.S. §§ 333.101-115 ("PMWA") for failure to pay overtime compensation that she alleges she earned during her employment with the defendants.
The defendants have moved to dismiss Dolbin's amended complaint, arguing that it fails to state a claim upon which relief may be granted. In the alternative, the defendants move for a more definite statement, claiming that the plaintiff's amended complaint, as written, is so ambiguous that it frustrates their ability to respond. These motions are fully briefed and are therefore ripe for our consideration. For the reasons that follow, it will be recommended that the motions to dismiss and for a more definite statement be denied so that the plaintiff's claims may be tested through discovery.
II. Statement of Facts and of the Case
The background to this case is taken from the well-pleaded factual allegations set forth in the amended complaint, which are accepted as true for purposes of this report only.
The plaintiff, Megan Dolbin, began her employment with Anthony Riccio in February of 2015 as the General Manager of Tony's Meat Market. (Doc. 9, ¶ 27). Some two years later, after Tony's Restaurant opened in March of 2017, Dolbin also began working for the restaurant, splitting her time between Tony's Meat Market and Tony's Restaurant. (Id., ¶ 28). While working at both locations, Mr. Riccio was Dolbin's direct supervisor. (Id., ¶ 31). From the outset of her employment with Mr. Riccio, Dolbin alleged that she experienced unwanted sexual attention from her boss. Shortly after she began working for Tony's Meat Market in 2015, Mr. Riccio had begun making inappropriate and unwanted sexual advances toward Dolbin, including "inappropriate comments of a sexual nature" and "unwelcome sexual touchings." (Id., ¶ 34). Specifically, Dolbin alleges that:
35. By way of example, Defendant Riccio rubbed Plaintiff's hips and remarked "nice ass" to her.
36. Defendant Riccio also referred to Plaintiff as his "wife" during a conversation with a customer.
37. Although Plaintiff told Defendant Riccio to stop, saying, "You can't do that," Defendant Riccio continued to engage in sexually-inappropriate behavior towards Plaintiff and other female employees of Defendants.
38. For example, Defendant Riccio told Plaintiff, "I'm going to buy you thigh-high tights, but I don't want your husband to find out."
39. By way of another example, in September 2016, while using Defendants' social media account to post work-related content, Plaintiff learned that Defendant Riccio had been sending unsolicited messages to . . . a deli employee[] via social media containing sexually-inappropriate content, including photographs of half-nude women.
40. It is believed . . . that Defendant Riccio was aware of Plaintiff's aforementioned discovery.
41. Plaintiff also notified Defendant Riccio that she had witnessed . . . [a] Catering Supervisor, who worked at both Tony's Meat Market and Tony's Restaurant, groping other female employees, including, but not limited to an eighteen (18) year-old waitress . . . who worked at Tony's Restaurant.
42. When Plaintiff objected to [the Catering Supervisor]'s conduct, telling him that he "can't do that," [the Catering Supervisor] had simply responded, "She has a nice ass."
43. Notwithstanding Plaintiff's report of harassment, Defendant Riccio neglected to take any remedial action against [the Catering Supervisor].
44. Indeed, rather than take remedial action . . ., in or around late July/early August 2017, Defendant Riccio grabbed Plaintiff's buttocks at work in front of at least one other employee.
45. Plaintiff slapped Defendant Riccio in response, extremely offended by Defendant Riccio's unwanted sexual touching, and instructed him to stop touching her.
46. On or about August 17, 2017, Plaintiff requested a one hundred dollar ($100) advance on her paycheck.
47. In response, Defendant Riccio said, "Sure. You don't have to worry about paying me back. You can give me a blowjob."
48. Defendant Riccio further commented, "You know I've always had the hots for you."(Id., ¶¶ 35-50). Dolbin claims that despite this harassment, she "performed her job well, receiving positive feedback concerning her performance and no discipline." (Id., ¶ 32). Thus, she asserts that she was terminated in retaliation for failing to engage in a quid pro quo sexual relationship with Mr. Riccio.
49. In response, Plaintiff unequivocally indicated that she did not have any interest in engaging in a sexual relationship with Defendant Riccio.
50. Approximately ninety (90) minutes after Plaintiff rejected Defendant Riccio's sexual advances, Defendant Riccio terminated Plaintiff's employment, stating that Defendants' employees did not enjoy working with her.
In addition, Dolbin claims that she invested over 40 hours per week working for Mr. Riccio at Tony's Meat Market and Tony's Restaurant, but that she was not paid overtime to do so. (Id., ¶¶ 62, 64). Specifically, Dolbin alleges that during two weeks in June of 2017, and at other times during her employment, she estimates that she worked over 55 hours each week, but that she was not paid overtime for the hours that she worked in excess of 40 per week. (Id., ¶ 65). Dolbin also asserts that she was paid on an hourly basis and did not qualify for any exemptions under either the FLSA or the PMWA which would disqualify her from overtime pay. (Id., ¶¶ 62-63, 66). When bringing this issue to Mr. Riccio's attention, she was told: "You're getting paid cash. Do you know how much that would be on the books?" and was not paid overtime for the hours she worked in excess of 40 per week. (Id., ¶ 75).
Based on these facts, on January 18, 2018, Dolbin filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination under Title VII and the PHRA on the basis of her sex. (Id., ¶ 16). This charge was also cross-filed with the Pennsylvania Human Relations Commission ("PHRC"). (Id.) Around February of 2019, the EEOC "issued a determination that there was reasonable cause to believe that Plaintiff was sexually harassed because of her sex and subjected to retaliatory discharge shortly after reporting said discrimination." (Id., ¶ 17). In response, Mr. Riccio submitted a letter brief denying the allegations in Dolbin's EEOC charge, and Dolbin was issued her right to sue letter on July 1, 2019. (Id., ¶¶ 18-19). Thereafter, Dolbin filed the instant action on September 25, 2019, alleging violations of Title VII, the PHRA, the FLSA, and the PMWA. (Doc. 1). The defendants have moved to dismiss this complaint, and in the alternative, request a more definite statement of Dolbin's claims. (Doc. 10). These motions have been fully briefed and are, therefore, ripe for our review.
III. Discussion
A. Motion to Dismiss —Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, -U.S.-, 129 S. Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not "assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. 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. 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." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the court of appeals has observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely consistent with" a defendant's liability, [ ] "stops short of the line between possibility and plausibility of 'entitlement of relief.' "Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S. Ct. 1861, 182 L.Ed.2d 644 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: "First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal, 129 S. Ct. at 1947. Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 1950. Finally, 'where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.' Id." Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
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, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached 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); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment"). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. The Defendants Are Not Entitled to Dismiss this Case at this Time Based Upon Administrative Exhaustion
Given the graphic nature of the factual averments made by Dolbin it is hardly surprising that the defendants have not elected to attack the legal sufficiency of these allegations on their merits in this motion to dismiss. Instead, the defendants urge us to consider jurisdictional questions and issues of administrative exhaustion in their motion to dismiss. The defendants initially allege that Dolbin has failed to exhaust her administrative remedies as to Counts I and II of her amended complaint with respect to Tony's Restaurant and Tony's LLC. Specifically, the defendants claim that Dolbin's failure to either name these entities in the caption of her EEOC charge or include any facts relating to her employment with the restaurant in the body of this document forecloses our ability to now consider any of these Title VII and PHRA claims against Tony's LLC and Tony's Restaurant. Dolbin counters that two exceptions to the exhaustion requirement established by the Third Circuit are applicable here.
We note that since Dolbin's charge with the EEOC was cross-filed with the PHRC, our exhaustion analysis is equally applicable to Dolbin's claims under Pennsylvania and federal law.
Title VII creates a legal framework for the resolution of work-related discrimination claims which first provides for administrative relief in these cases. In this setting, where Congress has provided administrative agency relief for private parties:
It is a basic tenet of administrative law that a plaintiff must exhaust all required administrative remedies before bringing a claim for judicial relief. McKart v. United States, 395 U.S. 185, 193, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969). . . . [T]he purposes of the exhaustion requirement are to promote administrative efficiency, "respect[ ] executive autonomy by allowing an agency the opportunity to correct its own errors," provide courts with the benefit of an agency's expertise, and serve judicial economy by having the administrative agency compile the factual record. Heywood v. Cruzan Motors, Inc., 792 F.2d 367, 370 (3d Cir. 1986).Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997).
Thus, for persons like Dolbin, who turn to Title VII to pursue employment discrimination claims, there is a necessary prerequisite to filing a lawsuit in federal court:
A plaintiff bringing an employment discrimination claim under Title VII must comply with the procedural requirements set forth in 42 U.S.C. § 2000e-5. Before filing a lawsuit, a plaintiff must exhaust her administrative remedies by filing a timely discrimination charge with the EEOC. Id. §§ 2000e-5(b), (e)(1), (f)(1). The EEOC will then
investigate the charge, and the plaintiff must wait until the EEOC issues a right-to-sue letter before she can initiate a private action. Burgh v. Borough Council, 251 F.3d 465, 470 (3d Cir. 2001). The ensuing suit is limited to claims that are within the scope of the initial administrative charge. Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). "The purpose of requiring exhaustion is to afford the EEOC the opportunity to settle disputes through conference, conciliation, and persuasion, avoiding unnecessary action in court." Id. After a charge is filed, "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 Assoc., Inc., 572 F.2d 960, 966 (3d Cir. 1978) (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976)); see also Antol, 82 F.3d at 1295; Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984).Barzanty v. Verizon Pa., Inc., 361 F. App'x 411, 413-14 (3d Cir. 2010).
There are, however, some exceptions to the exhaustion requirement. As the Third Circuit has noted, "[t]he purpose of requiring an aggrieved party to resort first to the EEOC is twofold: to give notice to the charged party and provide an avenue for voluntary compliance without resort to litigation." Glus v. G. C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977) (citing Le Beau v. Libby-Owens-Ford, 484 F.2d 798 (7th Cir. 1973); Fekete v. U.S. Steel Corp., 424 F.2d 331, 334; Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969)). However, since "much of the initiation of charges with the EEOC is done by laymen, . . . . [w]e cannot believe Congress intended that a person filing charges should accurately ascertain, at the risk of later facing dismissal of their suit, at the time the charges were made, every separate entity which in some way may have violated Title VII." Glus, 562 F.2d at 888.
Thus, the Court of Appeals has provided district courts with equitable exceptions to the otherwise strict statutory administrative exhaustion requirements. The first exception which Dolbin asserts is that she need not have named the defendants in question in the caption of the EEOC charge since they were named within the body of the charge. Specifically, Dolbin claims that while she did not name Anthony Riccio, Tony's LLC, or Tony's Restaurant in the caption of her EEOC charge, the fact that she mentioned Anthony Riccio numerous times in the body of the charge still subjects him, and these other defendants, to this court's jurisdiction.
On this score, we note that:
A Title VII or PHRA action "ordinarily may be brought only against a party previously named in an [administrative] action." Schafer v. Bd. of Pub. Educ. of Sch. Dist. of Pittsburgh, 903 F.2d 243, 251-52 (3d Cir. 1990) (citing Glus, 629 F.2d at 251). But consistent with the above principles, courts do not narrowly interpret this "naming" requirement to apply only to the caption of the administrative charge. Naming a person in the body of the charge is considered sufficient to satisfy the requirement:
[C]ourts relax Title VII's jurisdictional requirements—and necessarily the PHRA's as well—where a plaintiff has named the subsequent defendants in the body of the administrative charge. Kinnally [v. Bell of Pennsylvania], 748 F. Supp. [1136,] 1140 [(E.D. Pa. 1990)] (permitting suit against parties named in administrative charge); see Dreisbach [v. Cummins Diesel Engines, Inc.], 848 F. Supp. [593,] 596-97 [(E.D. Pa. 1994)] (distinguishing Kinally where individual defendants were not named in charge). Naming the defendants in the charge ensures that they will know of and participate in the PHRC proceedings,
and gives them an opportunity to resolve matters informally, without further litigation.
Vnuk v. Berwick Hosp. Co., 2015 U.S. Dist. LEXIS 109767, *11-13 (M.D. Pa. 2015) (Mariani, J.).
Glickstein v. Neshaminy Sch. Dist., Civ. No. 96-6236, 1997 WL 660636, at *10 (E.D. Pa. Oct. 22, 1997); see also Hills v. Borough of Colwyn, 978 F. Supp. 2d 469, 478 (E.D. Pa. 2013) (" 'Courts have found that the individuals do not have to be named in the caption of the case and that just mentioning the individuals in the body of the Complaint gives the individuals the requisite notice so that judicial relief may be sought under the PHRA.' ") (quoting DuPont v. Slippery Rock Univ. of Pennsylvania, Civ. No. 11-1435, 2012 WL 94548, at *3 (W.D. Pa. Jan, 11, 2012)); McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp. 2d 393, 398-99 (E.D, Pa. 2002) ("A plaintiff's claims are preserved as long as she names the defendants in the body of the EEOC administrative complaint because it provides the defendants with the requisite notice that their conduct is under formal review. It is not necessary that the defendants be named in the caption as a respondent."); Kunwar v. Simco, 135 F. Supp. 2d 649, 654 (E.D. Pa. 2001) ("In this case, Defendants contend that because Plaintiff named only 'Simco' in the caption of her administrative charge, she has failed to exhaust her administrative remedies with respect to the individual Defendants. In making this argument, Defendants overlook the text in the body of Plaintiff's charge. . . . Given that each of the above named Defendants were specifically referred to in one or both of Plaintiff's EEOC charges, we find that they were sufficiently put on notice and that Plaintiff has exhausted her administrative remedies with respect to them."); Jankowski v. Fanelli Bros. Trucking Co., Civ. No. 13-2593, 2014 WL 690861, at *4-8 (M.D. Pa. Feb. 24, 2014) (summarizing case law and finding that claims against defendants not "named in either the caption or the body of the Charge of Discrimination" were unexhausted under the facts of the case).
Dolbin cannot successfully ask this court to exercise its jurisdiction over Tony's Restaurant or Tony's LLC under this exception. It is undisputed that Dolbin failed to mention either of these entities within the body or the heading of her EEOC charge. Indeed, from the face of her EEOC charge, we do not discern that Dolbin worked anywhere other than Tony's Meat Market during the entirety of her employment with Mr. Riccio. In addition, the only factual allegation in her EEOC charge that could have occurred while working for Tony's Restaurant was the alleged exchange regarding Dolbin's request for a pay advance in August of 2017 which she claims lead to her termination. However, Dolbin does not indicate whether this exchange occurred at Tony's Meat Market or Restaurant. Every other factual allegation in her EEOC charge occurred before Tony's Restaurant ever opened. The omission of facts implicating Tony's Restaurant and Tony's LLC forecloses our ability to exercise jurisdiction over either of these entities under this exception, so we turn to Dolbin's second argument that jurisdiction is available using the "commonality of interests" exception.
The Third Circuit has set forth factors to examine when determining whether a district court has jurisdiction over an otherwise unnamed defendant under Title VII. These factors include:
1) whether the role of the unnamed party could through reasonable 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 as the unnamed party's that for the purpose 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. . . . . The goal of conciliation without resort to the already overburdened federal courts is of great importance and should not be lost. However, equally important is the availability of complete redress of legitimate grievances without undue encumbrance by procedural requirements especially when demanding full and technical compliance would have no relation to the purposes for requiring those procedures in the first instance.Id. The court later clarified that the "test is not a mechanical one; no single factor is decisive. Instead each factor should be evaluated in light of the statutory purposes of Title VII and the interests of both parties." Glus v. G. C. Murphy Co., 629 F.2d 248, 251 (3d Cir. 1980), vacated on other grounds, 451 U.S. 935 (1981).
The Court of Appeals has noted that the Congressional purposes behind Title VII are broad and remedial, entitling it to liberal construction. See Faush v. Tuesday Morning, Inc., 808 F.3d 208, 218 (3d Cir. 2015); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 263 (3d Cir. 2006); Erie County Retirees Ass'n v. County of Erie, 220 F.3d 193, 213 (3d Cir. 2000) (quoting Ariz. Governing Comm'n for Tax Deferred Annuity & Deferred Comp. Plans v. Norris, 463 U.S. 1073, 1089-91 (1983)).
Turning to the application of the factors in this case, we find that there are factual disputes which prevent us from resolving these issues at the motion to dismiss stage. Specifically, we are only able to consider one of these factors based on the pleadings before us, while the remaining factors, in our view, require a more in-depth factual examination than we are able to undertake at this stage where we are confined to an assessment of the pleadings. Indeed, at the motion to dismiss stage, our focus should remain solely on the pleadings, which did not contemplate this exhaustion challenge by the defendants. We examine these factors below, noting that the issue of exhaustion in this case is more appropriately raised after discovery has been undertaken.
As to the first factor, the only factor which we can consider at this time, we find that Dolbin should have reasonably ascertained the role of Tony's Restaurant in the facts giving rise to her charge when this document was filed with the EEOC. Based on her amended complaint, it is apparent that Dolbin was familiar with Tony's Restaurant at the time she filed her EEOC charge in January of 2018. (Doc. 10-1, Ex. A). Specifically, in her amended complaint, Dolbin alleges that she began working for Tony's Restaurant in March of 2017 and remained until August of the same year, splitting her time between the meat market and the restaurant. (Doc. 9, ¶¶ 28-29). Thus, her employment with both Tony's Restaurant and Tony's Meat Market ended before she filed this charge. At this time, she should have been aware of each entity's role in the alleged Title VII and PHRA violations, if any, and could have easily listed both of these entities in her EEOC charge if they both carried some level of accountability. Instead, Dolbin only listed Tony's Meat Market in her EEOC charge, leading us to believe that no violations occurred at Tony's Restaurant and that any allegations against the restaurant and Tony's LLC are therefore unexhausted.
Our second factor for consideration—whether, under the circumstances, the interests of Tony's Meat Market are so similar to Tony's LLC or Tony's Restaurant that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include Tony's LLC or Tony's Restaurant in the EEOC proceedings—requires some discovery for us to reach a determination. On this score, the defendants insist that Tony's Restaurant and Tony's LLC remained separate and distinct entities from Tony's Meat Market, a sole proprietorship owned and operated by Mr. Riccio. The defendants claim that corporate boundaries were respected among these entities and that many administrative functions were shared for convenience. In contrast, Dolbin asserts that the status of these entities as her joint employers; the fact that all entities were owned and operated by one individual, Mr. Riccio; and the fact that payroll, scheduling, and other administrative functions were shared between these entities renders their interests so similar that only Tony's Meat Market was required to represent the interests of all at the EEOC hearing. Given these factual disputes, in our view, more discovery is needed to fully determine whether Tony's Meat Market could serve as a proxy for Tony's LLC and Tony's Restaurant at the EEOC proceedings in this case.
Likewise, we find that more discovery is necessary for our consideration of the third factor. On this score, the defendants assert that "had the Restaurant been named in the EEOC Charge[,] . . . Mr. Riccio may have taken separate or distinct positions that better aligned with the interests of the restaurant as a separate and distinct entity." (Doc. 13, at 8). The defendants leave us to guess what this differing position may be. In contrast, Dolbin claims that the defendants were not prejudiced by their absence since they were represented through Mr. Riccio—the sole owner of all three entities—who could vouch for all three entities at the EEOC proceeding. Without the benefit of more information regarding the structure of these entities, we cannot say whether the interests of Tony's LLC and Tony's Restaurant could have been adequately represented by Mr. Riccio and Tony's Meat Market. Therefore, we recommend that some discovery be undertaken to create a more fulsome record on which to evaluate this factor.
Finally, we turn to the question of whether Tony's LLC or Tony's Restaurant have in some way represented to Dolbin that their relationship with her was to be through Tony's Meat Market. On this score, Dolbin alleges that Tony's LLC, Tony's Restaurant, and Tony's Meat Market maintained an "extremely close operating relationship" since both were controlled by Mr. Riccio. (Doc. 12, at 9). She asserts that she viewed these entities as a " 'joint, single, and/or integrated employer' of her and many other employees[,]" leading her "to believe that her employment at Tony's Restaurant was merely an aspect of her employment through Anthony Riccio." (Id.) Moreover, Dolbin claims that she was paid in cash, rather than through payroll, "and thus did not receive paychecks or paystubs which might have provided some indication (e.g. via payor identification) that Plaintiff was employed by Tony's LLC as well as by Tony's Meat Market and/or Anthony Riccio[.]" (Id.) In addition, Dolbin claims that Mr. Riccio maintained a joint payroll system for both Tony's Restaurant and Tony's Meat Market, "treating the employees at both locations as if they were part of the same company." (Id., at 11). The defendants counter that "the Restaurant made no representation that its relationship with the Plaintiff was to be through the parties named in the EEOC Charge, specifically Mr. Riccio and/or the Butcher Shop." (Doc. 13, at 8). The defendants also assert that Mr. Riccio's position as joint owner of these separate and distinct legal entities entitled and necessitated him to make the schedule for both businesses, create a payment system for each business's employees, and generally operate both businesses. (Id.) These factual disputes render us unable to consider this final factor at this time.
As we have explained, the procedural posture of this case hinders our ability to fully consider and weigh these factors. Therefore, we recommend that the defendants' motion to dismiss on exhaustion grounds be denied without prejudice to renewal at summary judgment on a more fulsome factual record.
C. The Defendants' Motion to Dismiss on Jurisdictional Grounds Should be Denied.
1. The Plaintiff's Claims Under Title VII Should not be Dismissed.
The defendants also assert that Dolbin has failed to adequately plead coverage under Title VII because she has failed to allege facts that either Tony's Meat Market or Tony's Restaurant were engaged in "commerce" as defined by Title VII. Therefore, the defendants assert that neither Tony's Restaurant nor Tony's Meat Market should be considered a covered "employer" under Title VII. (Doc. 11, 9). We disagree.
Under Title VII, an "employer" must be "a person engaged in an industry affecting commerce." See 42 U.S.C. § 2000e(b). Title VII further defines "industry affecting commerce" as:
any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry "affecting commerce" within the meaning of the Labor-Management Reporting and Disclosure Act of 1959, and further includes any governmental industry, business, or activity.42 U.S.C. § 2000e(h).
As the Third Circuit has explained,
[W]hen Congress expressly incorporated into Title VII . . . the definition of "affecting commerce" from the labor laws, the term "affecting commerce" had been interpreted as vesting in the National Labor Relations Board "the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." NLRB v.
Reliance Fuel Oil Corp., 371 U.S. 224, 226 (1963). Moreover, in Polish National Alliance v. NLRB, 322 U.S. 643 (1944), the Court made clear that the term "affecting commerce" was to be interpreted generally as providing for the exercise of Congress' power to the full extent granted under the Commerce Clause. The Court stated that, "when [Congress] wants to bring aspects of commerce within the full sweep of its constitutional authority, it manifests its purpose by regulating not only 'commerce' but also matters which 'affect', 'interrupt', or 'promote' interstate commerce." Id. at 647 (citations to statutes omitted).Martin v. United Way of Erie County, 829 F.2d 445, 448 (3d Cir. 1987). Thus, while the phrase "affecting commerce" may appear to limit this court's jurisdiction under Title VII, "it is clear that Congress intended to cover all activities affecting commerce, to the extent permitted by the Constitution. . . ." Id.
On this score, the Supreme Court has considered the position of restaurants in the context of the Commerce Clause. Reasoning that the Commerce Clause power "extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end," United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942), the Court held that "the operation of a restaurant that received approximately $70,000 worth of food that had moved in commerce 'affected commerce', and thus subjected the restaurant to Title II of the Civil Rights Act of 1964 prohibiting discrimination in places of public accommodation." Martin, 829 F.2d at 449 (citing Katzenbach v. McClung, 379 U.S. 294, 302 (1964)). In reaching this result, the Court explained that "much is said about a restaurant business being local but 'even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce. . . .' " Katzenbach, 379 U.S. at 302 (quoting Wickard v. Filburn, 317 U.S. 111, 125 (1942)).
Similarly, in Daniel v. Paul, 395 U.S. 298, 305 (1969), the Court held that because a "substantial portion of the food" served at a snack bar located at an amusement park had moved in interstate commerce, the entire facility was subject to Title II. Alternatively, the Court held that the entire facility was a place of entertainment "affecting commerce" because the facility leased its paddle boats from an out-of-state source, had purchased another boat from the same source, the facility's juke box was manufactured outside the state and it played records manufactured outside the state. Id. at 308.Martin, 829 F.3d at 449-50 (later applying the reasoning of the Court to Title VII).
In this case, Dolbin has alleged that part of her job responsibilities involved ordering and purchasing goods from outside of Pennsylvania for use in Tony's Restaurant and Tony's Meat Market. (Doc. 9, ¶ 14). While the extent of this interstate ordering is not clear from the face of the amended complaint, in our view, this is sufficient to survive the defendants' present motion to dismiss in light of the broad reach of the Commerce Clause. See Martin, 829 F.2d at 448 ("it is clear that Congress intended to cover all activities affecting commerce, to the extent permitted by the Constitution. . . ."). At a minimum, Dolbin's amended complaint indicates that goods used in Tony's Restaurant and Tony's Meat Market originated in other states and found their way to these businesses in interstate commerce. While the defendants may allege that the portion of goods used in their businesses from other states was not "substantial," we have no facts to support this assertion. Moreover, the question of whether a "substantial" amount of goods made their way to Tony's Restaurant or Tony's Meat Market in interstate commerce presents a factual dispute more appropriate for resolution at a later stage in these proceedings. Simply put, this jurisdictional question is intrinsically fact-bound and is not amenable to resolution on the pleadings. We accordingly recommend that the defendants' motion to dismiss Dolbin's claims under Title VII be denied without prejudice to renewal on a more fulsome factual record.
2. The Plaintiff's Claims Under the FLSA Should not be Dismissed.
Much like their motion to dismiss Dolbin's Title VII claims, the defendants also assert that Dolbin has failed to allege facts sufficient to bring her claims within the coverage of the FLSA. Specifically, the defendants claim that Dolbin has failed to plead individual or enterprise coverage under the FLSA.
The FLSA provides, in pertinent part, as follows:
Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.29 U.S.C. § 207(a)(1). In short, "employers covered by the FLSA must pay overtime compensation to employees who work more than forty hours a week 'unless one or another of certain exemptions applies.' " Doyle v. Wayne Mem. Hosp., 2020 U.S. Dist. LEXIS 25433, *14 (M.D. Pa. 2020) (quoting Packard v. Pittsburgh Transp. Cp., 418 F.3d 246, 250 (3d Cir. 2005)). However, as the Third Circuit has indicated, "exemptions from the coverage of the FLSA are to be narrowly construed." Brennan v. Western Union Tel. Co., 561 F.2d 477, 482 (3d Cir. 1977) (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 391-92 (1960)).
"The FLSA extends coverage to employees by two means: '(1) the employee himself may be engaged in commerce or in the production of goods for commerce (so-called "individual" coverage) . . .; or (2) the employee may be employed in an enterprise engaged in commerce or the production of goods for commerce (so-called "enterprise coverage.").' " SeYoung Ra v. Gerhard's, Inc., 2019 U.S. Dist. LEXIS 1132, *10 (E.D. Pa. 2019) (quoting Kehler v. Albert Anderson, Inc., 2017 WL 1399628, at * 7 (D.N.J. 2017)). Thus, "[o]nly those employees who are 'engaged in commerce or in the production of goods for commerce,' or who are 'employed in an enterprise engaged in commerce or in the production of goods for commerce' may seek recovery under the FLSA's minimum and overtime wage provisions.' " SeYoung Ra, 2019 U.S. Dist. LEXIS 1132, *10 (quoting Rummel v. Highmark, Inc., No. 13-87, 2013 WL 6055082, at *4 (W.D. Pa. Nov. 15, 2013) (quotation marks omitted). "Commerce" is defined by the FLSA as "trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." 29 U.S.C. § 203(b). It is the plaintiff's burden to prove that his or her employer is covered under the FLSA in order to succeed on the merits. See Katz v. DNC Servs. Corp., 2018 U.S. Dist. LEXIS 17002 (E.D. Pa. 2018).
In the instant case, Dolbin does not allege or produce evidence to show that Tony's Restaurant or Tony's Meat Market were enterprises engaged in commerce under the FLSA aside from her assertion that "she performed work involving goods purchased and/or ordered from locations outside of Pennsylvania . . . ." (Doc. 9, ¶ 14). Rather, she mainly alleges in general terms that these entities are employers within the meaning of the FLSA. (Doc. 9, ¶¶ 12-14). We find that Dolbin's allegations are sufficient to state a claim under the FLSA at the pleading stage. Indeed, many courts within this Circuit agree that generalized assertions of FLSA coverage are sufficient to survive a motion to dismiss. See, e.g., Doyle v. Wayne Mem. Hosp., 2020 U.S. Dist. LEXIS 25433, *15, n.3 (M.D. Pa. 2020) ("plaintiff's allegation is sufficient to state a claim under the FLSA at the pleading stage"); Raptis v. DPS Land Servs., LLC, 2020 U.S. Dist. LEXIS 89407 (W.D. Pa. 2020) ("Courts in this Circuit frequently hold that alleging that the defendant was an enterprise engaged in commerce under the FLSA '[i]s sufficient for purposes of a motion to dismiss.' ") (quoting Bedolla v. Brandolini, 2018 U.S. Dist. LEXIS 83815 (E.D. Pa. 2018) (quotation marks omitted); SeYoung Ra v. Gerhard's, Inc., 2019 U.S. Dist. LEXIS 1132 (E.D. Pa. 2019) (collecting cases); Griffin v. Alysia Home Health Agency, 2018 U.S. Dist. LEXIS 92511 (W.D. Pa. 2018). In light of this precedent indicating that Dolbin's amended complaint is sufficient at the pleading stage, we recommend denial of the defendants' motion to dismiss in favor of allowing additional factual development of this claim.
D. The Defendants' Request for a More Definite Statement Should be Denied.
Finally, in the alternative, notwithstanding the graphic detail Dolbin has provided in support of her claims the defendants request a more definite statement from Dolbin. Specifically, the defendants request more detail regarding where the events giving rise to Dolbin's claims occurred—either Tony's Restaurant or Tony's Meat Market; and whether Dolbin served as a General Manager for Mr. Riccio in either the restaurant or the meat market.
Federal Rule of Civil Procedure 12(e) often serves as a corollary to pleading standards under Rule 8(a). Rule 8(a) provides that a complaint must include "a short and plain statement of the grounds for the court's jurisdiction[;] . . . the claim showing that the pleader is entitled to relief; and . . . a demand for the relief sought, which may include . . . different types of relief." Fed. R. Civ. Pro. 8(a). Where the complaint is lacking in this regard:
A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired.Fed. R. Civ. Pro. 12(e).
We note that "[a] motion for a more definite statement is not a substitute for the discovery process[,]" and that such motions are not favored. Wheeler v. United States Postal Service, 120 F.R.D. 487, 488 (M.D. Pa. 1987). They are typically only granted where pleadings are "unintelligible or if it is virtually impossible for the opposing party to craft a responsive pleading." Maya v. Chertok, 2015 U.S. Dist. LEXIS 119815, *5 (M.D. Pa. 2015) (quotation marks omitted) (quoting Morris v. Kesserling, No. 09-1739, 2010 WL 4362630, at *1 (M.D. Pa. Oct. 27, 2010)); see Schaedler v. Reading Eagle Publ'n, 370 F.2d 795, 798 (3d Cir. 1966) (such motions are "directed to the rare case where because of the vagueness or ambiguity of the pleading the answering party will not be able to frame a responsive pleading."). The opposing party must be unable to respond "even with a simple denial[] in good faith or without prejudice to himself." Brueggman v. Fayette County, 1995 U.S. Dist. LEXIS 15718, *11 (W.D. Pa. 1995); see Kimberton Healthcare Consulting, Inc. v. Primary PhysicianCare, Inc., 2011 U.S. Dist. LEXIS 139980, *9 (E.D. Pa. 2011) ("a motion for a more definitive statement is generally . . . used to provide a remedy for an unintelligible pleading rather than as a correction for a lack of detail.").
The Third Circuit has, however, "highlighted the usefulness of a motion for a more definite statement when a complaint does not disclose the facts underlying a plaintiff's claim for relief such that the defendant cannot reasonably be expected to frame a proper, fact-specific defense." Miller v. Atl. Freight Sys., 2013 U.S. Dist. LEXIS 43915, *4 (M.D. Pa. 2013) (citing Thomas v. Independence Twp., 463 F.3d 285, 301 (3d Cir. 2006)). In this circumstance, "the Rule 12(e) motion for a more definite statement is perhaps the best procedural tool available to obtain the factual basis underlying a plaintiff's claim for relief." Id. (quoting Thomas, 463 F.3d at 301). At base, these motions are largely committed to the discretion of the trial court. Maya v. Chertok, 2015 U.S. Dist. LEXIS 119815, *5 (M.D. Pa. 2015).
In this case, the additions or modifications that the defendants request are likely to be uncovered in discovery. In other words, the defendants are seeking corrections to Dolbin's pleading, rather than a remedy for an unintelligible complaint. Since "[a] motion for a more definite statement is not a substitute for the discovery process[,]" Wheeler v. United States Postal Service, 120 F.R.D. 487, 488 (M.D. Pa. 1987), and such motions are typically only granted where pleadings are "unintelligible or if it is virtually impossible for the opposing party to craft a responsive pleading[,]" Maya v. Chertok, 2015 U.S. Dist. LEXIS 119815, *5 (M.D. Pa. 2015) (quotation marks omitted) (quoting Morris v. Kesserling, No. 09-1739, 2010 WL 4362630, at *1 (M.D. Pa. Oct. 27, 2010)); see Schaedler v. Reading Eagle Publ'n, 370 F.2d 795, 798 (3d Cir. 1966) (such motions are "directed to the rare case where because of the vagueness or ambiguity of the pleading the answering party will not be able to frame a responsive pleading."), we recommend denial of this motion for a more definite statement. The defendants will be able to ascertain these additional details during the discovery process and Dolbin's amended complaint is not so ambiguous as to preclude a response.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the defendants' motions to dismiss and for a more definite statement, (Doc. 10), be DENIED without prejudice to renewal on a more fulsome factual record.
The parties are hereby placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations, or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before
the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.
Submitted this 13th day of August, 2020.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge