Opinion
CIVIL ACTION NO. 1:17-CV-02096
03-07-2019
MONICA NICULCEA, Plaintiff, v. STONE RIDGE TOWNE CENTER, Defendant.
(CONNER, C.J.)
() REPORT AND RECOMMENDATION I. BACKGROUND AND PROCEDURAL HISTORY
For a general background, see the previous Report and Recommendation, docketed February 7, 2019. (Doc. 21 at 1-2). The Court adopted the undersigned's recommendation, conditionally denying defendant's motion to dismiss to the extent it sought dismissal for insufficient service and holding the remainder of the motion, which urged dismissal on the basis that Niculcea failed to state a claim upon which relief could be granted, in abeyance. (Doc. 23 at 2 ¶ 2). The Court held the remainder of the motion to dismiss in abeyance, waiting to rule on it if Niculcea effected proper service of her complaint. (Doc. 23 at 2 ¶ 2). The Court also granted Niculcea twenty-one days to properly effect service. (Doc. 23 at 2 ¶ 3). Per defendant's letter, Niculcea has now properly effected service.(Doc. 25).
On July 5, 2018, Niculcea filed a "Motion for Civil Action" (Doc. 16). In her "Motion for Civil Action", Niculcea appears to oppose the motion to dismiss, summarizing her prior filings with the U.S. Equal Employment Opportunity Commission ("EEOC") as well as her requests for accommodations for her disability. (Doc. 16 at 1-2). Niculcea also submitted two Exhibits with this document, which appear to be the disposition of her EEOC complaint as well as work restrictions prescribed by her doctor. (Doc. 16 at 3-20). On July 5, 2018, Niculcea also submitted another document docketed as her brief in opposition. (Doc. 17). Stone Ridge duly submitted reply briefs to both of Niculcea's documents. (Doc. 18); (Doc. 19). Accordingly, the motion to dismiss (Doc. 12) is now ripe for review. II. STANDARD OF REVIEW
On February 26, 2019 Niculcea submitted a request for an extension of time to submit a brief in support of her Motion for Civil Action, while she seeks an attorney to represent her. (Doc. 22 at 1). However, by the time Niculcea motioned for an extension of time, the undersigned had already deemed the underlying Motion for Civil Action withdrawn. (Doc. 20). When movant fails to file a supporting brief or seek an extension of time before the period to do so expires, the Court may deem the underlying motion withdrawn. See Prinkey v. Tennis, No. 4:09-CV-0052, 2010 WL 4683757, *4 (M.D. Pa. November 10, 2010). Therefore, Niculcea's motion for an extension of time is dismissed as moot.
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although the Court must accept the allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)).
In deciding a motion to dismiss, a court is generally limited to the allegations set forth in the pleadings, although it may also consider documents attached to the complaint and matters of public record. Evans v. Wetzel, No. 3:15-CV-0190 , 2016 WL 1242341, *1 (M.D. Pa. March 30, 2016) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994)). Opposition briefs to a motion to dismiss may not be used to amend a complaint. Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.1988). To determine the sufficiency of a complaint a court must take three steps. Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d. Cir. 2010). First, the court must take note of the elements required to state a claim. Id. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). And 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.
But See Gordon v. Kartri Sales Co., Inc., No. 3:17-CV-00320, 2018 WL 1123704, *3-4 (M.D. Pa. March 1, 2018) (noting the tension between the documentary integrity envisioned by Zimmerman and the court's duty to liberally construe a pro se litigant's complaint).
Pursuant to Rule 8 of the Federal Rules of Civil Procedure:
A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; [and] (2) a short and plain statement of the claim showing that the pleader is entitled to relief.Rule 8(a).
Additionally, "the statement required by Rule 8(a)(2) must give the defendant fair notice of what the plaintiff's claim is and of the grounds upon which it rests." Bayer v. Pocono Med. Ctr., No. CIV.A. 3:13-1900, 2014 WL 3670499, at *4 (M.D. Pa. July 23, 2014) (citing Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). III. DISCUSSION
A. TIMELY FILING OF THE COMPLAINT
Stone Ridge avers that Niculcea failed to bring suit within 90 days of her "right to sue letter" from the EEOC regarding her ADA and Title VII complaints. (Doc. 12-1 at 11). Niculcea claims that she did file with the court in less than ninety (90) days of EEOC decision," and refers the court to "Appendix A". (Doc. 17 at 10). This court is unable to determine with reasonable certainty which document(s) "Appendix A" refers to, as Doc. 17 contains nothing labeled "Appendix A." Niculcea also asserts that Stone Ridge "has knowledge of EEOC decision and not mention nothing [sic] about Plaintiff [sic] rights to suit EEOC decision." (Doc. 17 at 10).
It is possible that "Appendix A" in Doc. 17 refers to the section of Doc. 16 labeled as "Exhibit A." Exhibit A in Doc. 16 contains notices of right to suit mailed to Niculcea, and dated August 18, 2017. However, this exhibit does not help determine whether Niculcea filed suit within 90 days of receipt of the letter.
A civil action under Title VII must be commenced within 90 calendar days of receiving a right-to-sue letter from the EEOC. Rockmore v. Harrisburg Property Services, 501 F. App'x 161, 164 (3d. Cir. 2012); Carter v. Potter, 258 F. App'x 475, 478 (3d. Cir. 2007). Notification by the EEOC likewise commences the limitations period in an ADA action. See Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 110-11 (3d Cir. 2003). A Title VII civil action is commenced by filing a complaint with the court. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149-150 (1984) (citing Fed. R. Civ. P. 3). Likewise, ADA actions are commenced by filing a complaint in federal court. See Eng v. Scranton UC Serv. Ctr., No. 3:08-CV-1213, 2009 WL 25170, *1 (M.D. Pa. January 5, 2009). The ADA is generally interpreted to be consistent with Title VII. See Krouse v. American Sterilizer Co., 872 F. Supp. 203, 206-07 (W.D. Pa. 1994).
Niculcea's right to sue letter is dated, and was presumably mailed, August 18, 2017. However, the court cannot determine when the 90-day period closed because there is nothing in the record of this case at this juncture which shows when Niculcea received the right to sue letter. With all inferences to be drawn in Niculcea's favor at this juncture, any ruling based on Niculcea's timeliness with regard to filing suit would be premature at the motion to dismiss stage. The 90-day period beings when plaintiff receives the right to sue letter, not upon the date of the letter, as counsel for Stone Ridge suggests. See Carter, 258 F. App'x at 478 (emphasis added).
See also Mosel v. Hills Dept. Store, Inc., 789 F.2d 251, 252-53 (3d. Cir. 1986). "Indeed, the EEOC's form right-to-sue letter itself states that a plaintiff has ninety days after receiving the letter in which to file suit" (emphasis in original).
Stone Ridge's second argument, in which it concedes that Niculcea filed her Complaint on November 15, 2017, submits that the complaint should be dismissed for failure to comply with the requirements of Fed. R. Civ. P. 4. The Third Circuit has held that a "complaint is constructively filed as of the date the clerk received the complaint, as long as the plaintiff ultimately pays the filing fee or the district court grants the plaintiff's request for in forma pauperis." Cain v. Abraxas, 209 F. App'x 94, 97 (3d. Cir. 2006) (emphasis in original).
Even assuming the court determined that Niculcea received the right to sue letter on the date that it was issued plus three days, her 90 days would expire on November 18, 2017. Niculcea docketed her complaint on November 15, 2017, and paid her filing fee the following day. (Doc. 1). For these reasons, it is recommended that Stone Ridge's motion to dismiss for failure to file within 90 days of the right to sue letter be denied.
The actual date of receipt of the letter by the plaintiff controls, if it is known. Seitzinger v. Reading Hosp. and Medical Center, 165 F.3d 236. 239 (3d. Cir. 1999). But in the absence of other evidence, courts presume plaintiff received the letter three days after the EEOC mailed it. Id. Stone Ridge envisions the possibility that the court might allow three days for receipt of the letter by mail, as it cites to the applicable federal rule of procedure.
B. FAILURE TO STATE A CLAIM FOR CLASS RELIEF PURSUANT TO 23(A) & (B)
In a box in Part VII of her Civil Cover Sheet, Niculcea checked that her complaint was a class action under Rule 23 of the Federal Rules of Civil Procedure. (Doc. 1-1). The prerequisites for filing suit as a class action are 1) a class so numerous that joinder is impracticable, 2) questions of law or fact common to all the class, 3) the claims and defenses of the representative parties are typical of the claims or defenses of the class as a whole, and 4) that the representative party will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(1-4).
Aside from the box checked on the civil cover sheet, Niculcea's complaint lacks any allegations pertaining to a class action. Further, Stone Ridge has urged the court to deny the class action request. (Doc. 12-1 at 15). Across her briefs opposing the motion to dismiss, Niculcea does not address any potential class action status. Because Niculcea's complaint contains no allegations which even begin to color the requirements of Rule 23, and she does not oppose defendant's motion to dismiss, it is recommended that Niculcea's putative request for a class action be denied.
C. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES REGARDING REMAINING ADEA, GINA, AND TITLE VII CLAIMS
In her basis for jurisdiction, Niculcea states that "[t]his action is brought for discrimination in employment pursuant to Title VII, the [ADA], [GINA], or the [ADEA]/ (Doc. 1 at 1 ¶ 2) (emphasis added). Stone Ridge argues Niculcea failed to exhaust her administrative remedies regarding her age (ADEA), genetic information (GINA), race (Title VII), and color (Title VII) complaints. Stone Ridge attaches copies of the administrative complaints which contain EEOC charges regarding disability, national origin, and retaliation discrimination. (Doc. 12-3 at 10-14). Niculcea asserts that she did not fail to exhaust. (Doc. 17 at 16).
"It is a basic tenet of administrative law that a plaintiff must exhaust all required administrative remedies before bringing a claim for judicial relief. We have explained that the 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.
Title VII of the Civil Rights Act of 1964 establishes the exclusive remedy for federal employees who allege discrimination in the workplace. Under regulations promulgated by the EEOC in effect in 1990, an aggrieved federal employee was required to initiate contact with an agency counselor within 30 days of the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. A formal EEOC complaint must be filed within 15 calendar days after the date of receipt of the notice of the right to file a complaint. Finally, in order to bring an action in district court the employee must do so either within 30 days of receipt of notice of final agency action or within 180 days from the date of filing the complaint if the agency has not reached a decision. Thus, exhaustion requires both consultation with an agency counselor and filing a formal EEOC complaint within the required times."
Robinson v. Dalton, 107 F.3d 1018, 1020-21 (3d. Cir. 1997). (Internal citations and quotations omitted).
"The causes of action created by Title VII do not arise simply by virtue of the events of discrimination which that title prohibits." Horsby v. U.S. Postal Service, 787 F.2d 87, 90 (3d. Cir. 1986). In order to survive a motion to dismiss, a cause of action must assert the "satisfaction of the precondition to suit specified by Title VII: prior submission of the claim to the EEOC... for conciliation or resolution." Id. GINA incorporates the administrative exhaustion requirement from Title VII. Sullivan v. Lowe's Hiw, Inc., Case No. C15-1184JLR, 2015 WL 6439097, *2 (W.D. Wash. October 22, 2015). Likewise, the ADEA requires a plaintiff to exhaust all administrative remedies. Singland v. Donahoe, 542 F. App'x 189, 191; 193 (3d. Cir. 2013). "The receipt of the right-to-sue letter indicates that a complainant has exhausted administrative remedies, an essential element for bringing a claim in court under Title VII." Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001) (citations omitted).
"Failure to exhaust administrative remedies in an employment discrimination case is not a jurisdictional bar to a plaintiff's suit, but rather is an affirmative defense, in the nature of a statute of limitation." Ackah v. Pennsylvania Dep't of Corr., No. 4:08-CV-0376, 2008 WL 11366478, *6 (M.D. Pa. November 14, 2008) (citations omitted). Because it is an affirmative defense, the burden lies with defendant to plead and prove that plaintiff failed to exhaust administrative remedies. Williams v. Runyon, 130 F.3d 568, 573 (3d. Cir. 1997).
Here, Niculcea alleges she obtained a right to sue letter from the EEOC. (Doc. 1 at 1). Plaintiff need only allege that she satisfied the exhaustion requirements for Title VII to survive a motion to dismiss. See Elberson v. Pennsylvania, No. 1:06-CV-2143, 2008 WL 906494, *7 (M.D. Pa. Mar. 31, 2008). Cf. Twillie v. Erie School Dist., 575 F. App'x 28, 29-31 (3d Cir. 2014) (granting defendant's motion to dismiss Title VII claim based on plaintiff's failure to exhaust administrative remedies after holding an oral argument on the motion and twice granting plaintiff leave to amend in the face of earlier motions to dismiss because at that point plaintiff was on notice of "need to exhaust her claims administratively before raising them in a federal court."). Further, although she is not required to, plaintiff did attach some documentation from the EEOC to her complaint, including a right to sue letter. (Doc. 1 at 4-5). Because Niculcea alleges exhaustion, and attaches some documentation which tends to support exhaustion, the motion to dismiss is denied on the ground of administrative exhaustion. Further, given the lack of clarity of plaintiff's complaint (See Discussion Section D below), the court finds a motion to dismiss for failure to exhaust would be premature, if not impossible, at this time. See Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984) ("[t]he relevant test in determining whether appellant was required to exhaust her administrative remedies, therefore, is whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom"). It is recommended that the court deny Defendant's motion to dismiss on the issue of failure to exhaust administrative remedies.
D. FAILURE TO STATE A CLAIM PURSUANT TO THE LISTED STATUTES
Defendant acknowledges Niculcea "references the ADEA, GINA, and Title VII in her complaint" but maintains "she has not pled the elements of a cause of action or even a single fact to support her claim under these statutes." (Doc. 15 at 5). Niculcea's statement of claim consists of three paragraphs totaling less than one page. (Doc. 1 at 2 ¶ 3).
1. ADEA Claim
Niculcea may state a prima facie case under the ADEA by alleging that: (1) she is forty years of age or older; (2) OHL took an adverse employment action against her; (3) she was qualified for the position in question; and (4) she was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir.2013). Niculcea's complaint makes no reference to her age, and thus she has not stated the first prong of the prima facie ADEA claim.
2. Title VII Claim
To state a prima facie under Title VII, Niculcea must state that: (1) she belongs to a protected class; (2) she was qualified for the position; (3) she was subject to an adverse employment action despite being qualified; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. Coleman v. Pennsylvania. State Police, 561 F. App'x 138, 146 (3d Cir. 2014). The classes protected under Title VII are race, color, religion, sex, and national origin. See Slagle v. County of Clarion, 435 F.3d 262, 268 (3d Cir. 2006). Niculcea's complaint makes no reference to her potential inclusion in any of the classes protected by Title VII, and thus she has not stated the first prong of the prima facie Title VII claim.
3. GINA Claim
To state a claim under GINA, Niculcea must state that: (1) that she was an employee; (2) who was discharged or deprived of employment opportunities; (3) because of information from her genetic tests. Carroll v. Comprehensive Women's Health Services, No. 3:16-cv-1509, 2017 WL 4284386, *6 (M.D. Pa. September 27, 2017). Here, Niculcea's complaint makes no reference to genetic tests nor information contained therein, and therefore she has not stated the third prong required for a GINA claim. IV. LEAVE TO AMEND
The Third Circuit has instructed that district courts generally must permit a curative amendment if a complaint filed pro se is vulnerable to dismissal for failure to state a claim, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). However, the Third Circuit has also acknowledged that a district court has "substantial leeway in deciding whether to grant leave to amend." Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000). Accordingly, it is recommended that Niculcea be given the opportunity to file an amended complaint that is complete in all respects and sets forth factual allegations and specific legal claims in a manner that can be answered by the Defendant. Niculcea is advised that the amended complaint must be a pleading that stands by itself without reference to the original or amended complaint. Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992) (emphasis added). Any previously-asserted arguments or factual allegations that Niculcea omits from the forthcoming amended complaint will be deemed waived. Niculcea's amended complaint must recite factual allegations sufficient to raise her claimed right to relief beyond the level of mere speculation; contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2); set forth averments that are "concise, and direct," Fed. R. Civ. P. 8(e)(1); and state such averments in separately-numbered paragraphs describing the date and time of the events alleged and identifying wherever possible the specific participants in the acts about which she complains. See Boyd v. New Jersey Dep't of Corr., 583 F. App'x 30, 32 (3d Cir. 2014) (not precedential), cert. denied, 135 S. Ct. 2374 (2015). V. RECOMMENDATION
Based on the foregoing, it is recommended that the Court grant Defendants' Motion to Dismiss in part, as follows:
1. Defendant's motion to dismiss pursuant to the timeliness of Niculcea's filing after receipt of her right to sue letter be DENIED;
2. Defendant's motion to dismiss Niculcea's request for a class action be GRANTED;
3. Defendant Stone Ridge's motion to dismiss Niculcea's claims on the basis of administrative exhaustion be DENIED;
4. Defendant Stone Ridge's motion to dismiss Niculcea's claims for failure to state a claim be GRANTED;
5. Niculcea be granted twenty-one days in which to file an amended complaint; and
6. This matter be remanded to the undersigned for further proceedings.
Dated: March 7, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated March 7, 2019.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
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.
Dated: March 7, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge