KAROLINE MEHALCHICK, Magistrate Judge.
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, `, 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.
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.
Pursuant to Rule 8 of the Federal Rules of Civil Procedure:
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)).
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."
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
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.
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.
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).
"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.
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).
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.
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.
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.
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
Based on the foregoing, it is recommended that the Court grant Defendants' Motion to Dismiss in part, as follows:
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
