ROBERT J. DUDASH, ESQUIRE ROBERT JAMES JACKSON, ESQUIRE ROBERT JAMES JACKSON ASSOCIATES Mills of Victoria, Suite 301 1489 Baltimore Pike Springfield, PA 19064 (610) 604-4972 ________________________________________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff
and
GERALD FLANAGAN, Plaintiff/Intervenor
vs.
CREATIVE PLAYTHINGS, LTD., Defendant

: IN THE UNITED STATES : DISTRICT COURT FOR THE : EASTERN DISTRICT OF : PENNSYLVANIA : : : : DOCKET NO. 04-3243 : : : : : JURY TRIAL DEMANDED

COMPLAINT Plaintiff/Intervenor, GERALD FLANAGAN, by and through his undersigned attorneys, complains of Defendant CREATIVE PLAYTHINGS, LTD., as follows:

I. NATURE OF CLAIM 1. This is a proceeding for declaratory relief, damages, and other appropriate legal and equitable relief against Defendant to redress the deprivation of rights secured to Plaintiff by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000(e) et seq. and Title I of the Civil Rights Act of 1991 (Title VII). Plaintiff also proceeds on Defendant’s violation of the Pennsylvania Human Relations Act,

and additionally for liability under various causes of action in tort, specifically Trade Libel and Defamation, Interference with Contract and Business, and Intentional Infliction of Mental and Emotional Distress.
2. The causes of action are statutory, common law and in tort.

II.

JURISDICTION

3. This lawsuit was filed on July 9, 2004, by the Equal Employ-

ment Opportunity Commission (EEOC) as original Plaintiff following its investigation

arising out of a complaint lodged with the EEOC by Plaintiff/Intervenor GERALD

FLANAGAN herein after he was discharged by Defendant about July 5, 2002. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C. Sections 1331, 1343(4), 2201

and 2202; Title VII, and pendant jurisdiction. Jurisdiction to grant injunctive and declar-

atory equitable relief as well as damages is invoked pursuant to 42 U.S.C. Section

2000(e) - 5(f) and (g) and 29 U.S.C. Section 626 ( c). The amount in controversy exceeds

$75,000.00. Plaintiff FLANAGAN joins with Plaintiff EEOC in filing this Complaint as

Intervenor and incorporates the EEOC Complaint to the extent not inconsistent herein.

III ADMINISTRATIVE PROCEEDINGS 4.On or about July 12, 2002, Plaintiff filed a timely charge
against his employer CREATIVE PLAYTHINGS, LTD. alleging violations of and deprivation of his rights under Title VII with the Equal Employment Opportunity Commission (hereinafter “EEOC”), and the Pennsylvania Human Relations Commission (hereinafter “PHRC”) after FLANAGAN was wrongfully discharged from his job with CREATIVE PLAYTHINGS, LTD.

5. Following its investigation, the EEOC determined there was cause for finding a violation of Title VII by CREATIVE PLAYTHINGS, LTD. Conciliation failed and the EEOC filed this lawsuit. Plaintiff FLANAGAN has filed a Motion to Intervene to which this Complaint was appended.
IV. PLAINTIFF 6. Plaintiff GERALD FLANAGAN is an adult individual and a male citizen of the United States. 7. Plaintiff alleges that the Defendant maintained a pattern and practice of discriminating against individuals of Afro-American descent and other minorities in its hiring, placement, promotion and salary policies, and that as a consequence of these policies and the personal actions and predilections of the Defendant, Plaintiff was wrongfully discharged from employment when Plaintiff insisted on promoting or recommending for promotion certain individuals, as hereinafter described, of Afro-American race. 8. Defendant CREATIVE PLAYTHINGS, LTD. is in the general business of manufacturing, distributing and selling playground swing sets, both residential and commercial, and has approximately eight stores in the local district including Southeastern Pennsylvania, New Jersey, Maryland, Virginia, and Delaware. Defendant has numerous stores, distributors, and other businesses. Defendant has also commenced franchise operations in the East and mid-East. At times pertinent herein Defendant corporation acted by and through its owner, officers, fiduciaries, agents, servants, employees and representatives, specifically individually-named DONALD E. HOFFMAN and

PETER W. KAKRIDES.
9. Plaintiff GERALD FLANAGAN was hired by DONALD E. HOFFMAN, the owner and President of CREATIVE PLAYTHINGS, LTD. on or about July 26, 2000, as Store Manager for corporate Defendant CREATIVE PLAYTHINGS, LTD. out of the 300 Lawrence Drive, West Chester, Pennsylvania, store. Under Plaintiff’s direction, the West Chester store became a top store in sales rankings shortly thereafter.
10. Within eight weeks after his hiring, Plaintiff GERALD FLANAGAN was promoted to District Manager, responsible for stores in, inter alia, the Southeastern Pennsylvania region, which included other states in the local district. In the course of his employment, Plaintiff made a number of improvements to the business operations and procedures of the corporate Defendant including the following:
(a) Restructuring floor plans, warehouses and delivery systems for storage in his region;
(b) Instituting a “free delivery and installation” program which generated additional hundreds of thousands in gross sales;
(c) Introducing a commercial division for the company and establishing and creating the division himself;
(d) Introducing Defendant to the benefits of franchising stores, specifically Fran Corp., which corporate Defendant picked up and utilized to its great benefit.

11. Plaintiff was offered a promotion in April, 2002, to become a vice-president of the company in the mid-West out of Chicago, Illinois; Plaintiff declined the position because of family matters. Subsequently, Plaintiff was offered a promotion in mid-June, 2002, to assume operations for the company’s Commercial Division exclusively; the Defendant informed Plaintiff he would be earning at least $150,000.00 yearly, with another $50,000.00+ yearly in commissions or bonuses.
12. As a result of his promotion to the company’s Commercial Division, Plaintiff would be replaced in his territory by two District Managers whom Plaintiff would recommend. Plaintiff recommended the promotions to District Managers from within the company be Vamar Franklin and Dennis Anderson, both of whom are of Afro-American race.
13. The culture of the corporate Defendant, maintained and reinforced by the Defendant, was to discourage minority hiring, especially in management, because, as articulated by DONALD E. HOFFMAN, “our white customers cannot relate to minorities”.
14. Plaintiff had earlier promoted Vamar Franklin and Dennis Anderson to Store Managers against the company culture.
15. Individual Defendant DONALD E. HOFFMAN categorically and vehemently refused to consider Plaintiff’s recommendations to promote Vamar Franklin and Dennis Anderson as District Managers because of their race. Despite this, Plaintiff submitted and refused to change his recommendations for the promotions of

Vamar Franklin and Dennis Anderson to the position of District Managers of the corporate Defendant.
16. After making his recommendations, which were abruptly rejected by DONALD E. HOFFMAN on behalf of the company, Plaintiff was ignored and blackballed by the HOFFMAN and KAKRIDES who subsequently concocted, created and advanced complaints about Plaintiff’s work performance in an attempt to justify their dismissal of Plaintiff.
17. On July 5, 2002, Defendant abruptly discharged Plaintiff. PETER W. KAKRIDAS drove down from Massachusetts to the West Chester, Pennsylvania, store, without notice, and peremptorily fired Plaintiff, confiscating his company car and leaving Plaintiff without even transportation to return home. Plaintiff was given a ride home by an employee.
18. The reasons advanced by Defendant for Plaintiffs’ discharge were totally inconsistent with their prior praise and appreciation of Plaintiff’s prior work performance, and inconsistent with his promotions and advancement through the company.
19. Plaintiff was discharged in retaliation for promoting minorities into Store Manager positions and for recommending the promotion of two black Store Managers to District Manager positions, all in violation of Title VII of the Civil Rights Act of 1964, as amended, and in violation of the rights guaranteed Plaintiff under the Pennsylvania Humans Relations Act.

20. Defendant asserted false reasons for Plaintiff’s discharge and have engaged in further unlawful discriminatory practices of retaliating against Plaintiff on account of his having opposed racial favoritism and bias in employment, which opposition is protected under the Federal Civil Rights Act and under the Pennsylvania Human Relations Act.
21 Defendant, through HOFFMAN and KAKRIDAS in particular, conspired and acted together in concert in creating, aiding, abetting, and inviting the unlawful discharge of Plaintiff in retaliation for opposition in racially discriminatory employment practices, further actively and intentionally acted in covering up the true reasons underlying Defendant’s unlawful retaliatory discharge of Plaintiff.
22. Plaintiff subsequently timely filed a charge and complaint with the federal Equal Employment Opportunity Commission (EEOC) in Philadelphia, Pennsylvania, and the Pennsylvania Human Relations Commission.
23. Following these filings by Plaintiff, Defendant further retaliated against Plaintiff as follows:
(a) Defendant filed a Petition for a Temporary Restraining Order in March, 2003, alleging that Plaintiff violated a non-compete agreement, docketed as “Creative Playthings, Ltd. vs. Gerald Flanagan, Civ. No. 03-CV-1627, U.S.D.C., E.D. PA. There was no legal basis or justification for this filing. Defendant’s request for a Temporary Restraining Order was dismissed by the Federal Court.
(b) Defendant continued to disparage and harass Plaintiff by continuing to proceed with this equity action alleging violation of the Non-

Competition Agreement, and compelling Plaintiff to incur substantial legal fees while at the same time having had deprived Plaintiff and seeking to continue to deprive Plaintiff from earning a livelihood.
24. Subsequently, Defendant continued to disparage and harass Plaintiff by continuing to challenge and cover up their true actions, motives and reasons for discharging Plaintiff and continuing to contest the EEOC investigations in violation of the Pennsylvania Humans Relations Act, and further by defaming, slandering and libeling Plaintiff in the nature of trade libel, all violations and attacks on Plaintiff’s integrity, character and reputation.
25. Following their wrongful discharge of Plaintiff and after he filed his complaint with the Pennsylvania Human Relations Commission and the EEOC, Defendant made, distributed and published accusations about Plaintiff that he was untrustworthy to do business with and that creditors would not get paid by Plaintiff; said actions were intentional and malicious and in the nature of additional retaliation in seeking to slur and defame Plaintiff.
26. Defendant’s actions throughout have been intentional, willful, and malicious, or recklessly indifferent to Plaintiff’s rights.
V. DEFENDANT 27. Corporate Defendant CREATIVE PLAYTHINGS, LTD. is a corporation with its primary corporate address at 33 Loring Drive, Framingham, MA 1702. Defendant is, and at all times hereinafter mentioned was, an employer engaged

in interstate commerce and employing more than 15 persons. Defendant has numerous offices and places of business in various states throughout the Northeast and Midwest, not including franchise operations and distributors nationwide and in Europe.
28. DONALD E. HOFFMAN is an adult individual who is the President, Owner and CEO of the corporate Defendant, with his office out of 33 Loring Drive, Framingham, Massachusetts.
29. PETER W. KAKRIDAS is an adult individual who is the VicePresident of the corporate Defendant, with his office out of the corporate office at 33 Loring Drive, Framingham, Massachusetts.
VI. FIRST COUNT 30. By reason of each and every act alleged in Paragraphs 4 thru 27 of this Complaint, and the pattern, practice, custom and uses over which said acts are part, Plaintiff was wrongfully discharged and retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended and Title I of the Civil Rights Act of 1993, and was additionally retaliated against after pursuing his charge and complaint with the EEOC.
VII. SECOND COUNT 31. By reason of each and every act alleged in Paragraphs 4 thru 27 of this Complaint, and the pattern, practice, custom and uses over which said acts are part, Plaintiff was wrongfully discharged and retaliated against in violation of the Pennsylvania Human Relations Act.

VIII. THIRD COUNT 32. By reason of each and every act alleged in Paragraphs 4 thru 27 of this Complaint, and the pattern, practice, custom and uses over which said acts are part, Defendant has breached its promises to Plaintiff for Plaintiff to head up the corporate Defendant’s Commercial Division and to earn $200,000.00 yearly and upwards.
IX. FOURTH COUNT 33. By reason of each and every act alleged in Paragraphs 4 thru 27 of this Complaint, and the pattern and practice of discrimination, the Defendant acted to carry out trade libel and defamation per se against Plaintiff, or other defamation in general, and to assault and attack Plaintiff’s integrity, reputation, and character.
X. FIFTH COUNT 34. By reason of each and every act alleged in Paragraphs 4 through 27 of this Complaint, the actions of Defendant, both past and continued, have subjected and continue to subject Plaintiff to and cause Plaintiff to sustain mental and emotional distress and turmoil.
XI. SIXTH COUNT 35. By reason of each and every act alleged in Paragraphs 4 through 27, Defendant has acted to interfere with Plaintiff’s new, existing or ongoing or prospective business relationships, dealings, contracts, and to deprive Plaintiff of gainful employment and livelihood.

XII SEVENTH COUNT 36. By reason of each and every act alleged in Paragraphs 1 through 27 of this Complaint, the actions of Defendant both past and continued are of such character and nature as to give rise to punitive damages.
XIII. RELIEF WHEREFORE, Plaintiff prays that the Court: (a) Issue a permanent injunction enjoining Defendant from continuing or maintaining the policy, practice and custom of denying, abridging, withholding, or conditioning the rights of employees on the basis of race, which rights are secured by Title VII, and the Pennsylvania Human Relations Act; (b) Enter a declaratory judgment that the acts and practices of Defendant complained of herein are in violation of the laws of the United States and the Commonwealth of Pennsylvania; (c) Award Plaintiff actual damages for loss of wages in an amount to be fixed upon inquest and based upon the difference between total compensation Plaintiff would have earned in the absence of illegal discrimination and his wrongful discharge, and the total compensation actually earned, and including all economic damages, loss of value of benefits, front pay, and prospective loss of increased salary and commissions; (d) Award Plaintiff compensatory and punitive damages under the Federal and State acts;

(e) Award Plaintiff the costs of this action, together with reason-
able attorney’s fees as provided for in Title VII and in the state act;
(f) Award Plaintiff compensatory and punitive damages for de-
famation per se and for libel;
(g) Award Plaintiff compensatory and punitive damages for
Defendant’s harassment and intentional infliction of mental and emotional distress;
(h) Award Plaintiff compensatory and punitive damages for
Defendant’s interference with his contractual relations and the business, employment,
and new livelihood of Plaintiff;
(i) Award Plaintiff his other litigation costs, expenses and
attorney’s fees;
(j) Grant Plaintiff such other and further relief as may be
necessary and proper.
Respectfully submitted,
/s/________________________________ ROBERT J. DUDASH, ESQUIRE ROBERT JAMES JACKSON, ESQUIRE ROBERT JAMES JACKSON ASSOC. Mills of Victoria, Suite 301 1489 Baltimore Pike Springfield, PA 19064 (610) 604-4972

 
 ~~\~~ Equal Fmployment Opportunity Commission Philadelphia District Office 21 South Fifth Street, Suite 400 Philadelphia. PA 19106-2515 Woody Anglade Attorney for Plaintiff

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION AND GERALD FLANAGAN, )

)

Plaintiffs, )

Civil Action No. 04-3243 (AD)

v.

)

)

)

CREATIVE PLAYTHINGS, INC.,

)

) Defendant. )

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CONSENT DECREE

MICHA~!\tJ>!Z'Clerk

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Dcp Clerk

,

INTRODUCTION

A. This action was instituted by the United States Equal Employment Opportunity

Commission (the "EEOC" or the "Commission") on or about July 9, 2004. against Creative

Playthings, Inc. under Title Vll of the Civil Rights Act of 1964 and Title 1 of the Civil Rights Act

of 1991 (,Title VIl"). The EEOC alleged that Defendant Creative Playthings. Inc.. ("Creative

Playthings" or "Defendant"), retaliated against Gerald Flanagan on July 5, 2002. when it terminated

his employment as a District Manager because he had engaged in protected activity when he

opposed employment practices he believed to be discriminatory under Title VII. The Commission

further alleged that Defendant subjected a class of Black and Hispanic employees to differential

terms and conditions of employment, when they were not hired or promoted for available positions,

I

and when they were subjected to a hostile work environment based on their race and/or national origin. The EEOC also alleged that as a result of the discrimination, Mr. Flanagan and a class of Black and Hispanic minority employees suffered back pay and emotional distress damages.
B. This Consent Decree is entered into by the EEOC and Defendant Creative Playthings. This Consent Decree shall be final and binding between the EEOC and Defendant Creative Playthings, its directors, officers, agents, employees, successors or assigns and all persons in active concert or participation with it, (hereinafter collectively referred to as ("Creative Playthings," "Creative Playthings, Ltd." or "Defendant").
C. The Commission and Defendant do hereby agree to the entry of this Consent Decree, which shall fully and finally resolve all claims which were raised by the EEOC in its Complaint in Civil Action No. 04-CV-3243. This Consent Decree shall not constitute an adjudication of or finding on the merits of the case and shall not be construed as a violation of Title VII by Defendant, which in fact Defendant denies.
CONSENT DECREE Upon consent of the parties to this action, it is hereby ORDERED, ADJUDGED and DECREED that:
NON-DISCRIMINATION AND NON-RETALIATION I. This Court has jurisdiction over the parties and the subject matter of this action. 2. Defendant is enjoined from engaging in any employment practice which constitutes unlawful discrimination under Title VII. Specifically, Defendant is enjoined from creating, fostering or tolerating a work environment which discriminates based on race and/or national origin. Defendant is also enjoined from failing to promote qualified minority employees to
2

available positions based on race and/or national origin, 3, Defendant is enjoined from engaging in any employment practices which retaliate
in any manner against any person, including but not limited to, Gerald Flanagan, Varnar Franklin, and the class of four (4) aggrieved individuals as identified in Exhibit I, because of that person's opposition to any practice alleged or believed to be unlawful under Title Vll, or because of the filing of a charge, the giving of testimony or assistance, or the participation in any manner in any investigation, hearing or proceeding under Title VII.
4, Defendant shall not divulge, directly or indirectly, except as required by law, to any employer or potential employer of the individuals listed in Paragraph 3, any of the facts or circumstances related to the charge of discrimination against Defendant, or any of the events relating to their participation in the litigation of this matter.
5, Creative Playthings shall expunge from the personnel files of Gerald Flanagan, Vamar Franklin, and the class of four (4) aggrieved individuals as identified in Exhibit I, any documents, pleadings, correspondence and related papers pertaining to the charge of discrimination filed by Mr. Flanagan with the Commission.
6, Defendant shall comply fully with all provisions of Title VII. Nothing in this Consent Decree, either by inclusion or exclusion, shall be construed to limit the obligations of Defendant under Title VII or the EEOC's authority to process or litigate any charge of discrimination which may be filed against Creative Playthings in the future,
MONETARY RELIEF Gerald Flanagan
3

7. Defendant agrees to pay monetary relief in the total amount of $150,000 to Gerald Flanagan, in full settlement of the claims against Defendant which were raised in the Commission's Complaint. Total attorneys' fees to be subtracted from the $150,000 amount equals $53,640, and will be dispensed directly payable to Mr. Flanagan's counsel, Robert J. Dudash. Monetary relief shall be paid over a three (3) year period, specifically the monetary relief will be paid in the following structured manner: on or before September 9, 2005, Creative Playthings will pay Gerald Flanagan $46,334 (Forty-Six Thousand, Three Hundred Thirty Four Dollars), and Robert J. Dudash $28,666 (Twenty-Eight Thousand, Six Hundred Sixty-Six Dollars); on or before September 9, 2006. a second payment to Gerald Flanagan of $25,013 (Twenty-Five Thousand. Thirteen Dollars), and Robert J. Dudash $12,487 (Twelve Thousand, Four Hundred Eighty-Seven Dollars); and a final payment to Gerald Flanagan of $25,013 (Twenty-Five Thousand, Thirteen Dollars), and Robert J. Dudash $12.487 (Twelve Thousand. Four Hundred Eighty-Seven Dollars), on or before September 9,2007. If Creative Playthings does not make all payments as designated in the manner set forth in this Paragraph, the Court will enter a judgment for the entire amount remaining due, plus attorneys fees, costs, and interest to be paid at the legal rate, compounded daily. The checks will be mailed to Robert J. Dudash, Esq. at the Law Offices of Robert J. Dudash, Esq., 5030 State Road, Suite 2-600, Drexel Hill, PA 19026. Defendant will mail a photocopy of each check to the EEOC, to the attention of Woody Anglade, Trial Attorney, EEOC, The Bourse, 21 South Fifth Street, Suite 400, Philadelphia, PA 19106-2515, within five days of the date of mailing of the check to Mr. Dudash, Esq. In order to receive the monetary relief, Mr. Flanagan must execute a release which will be forwarded by Creative Playthings to Mr. Flanagan's private attorney, Robert .I. Dudash, Esq. Please note that late payments will be subject to the accrual of
4

interest on the unpaid amount, calculated pursuant to 28 U.S.c. § 1961. The Class
8. Defendant Creative Playthings agrees to pay monetary relief in the total amount of $125,000 to Vamar Franklin and a class offour (4) aggrieved individuals as identified in Exhibit I, in full settlement of the claims against Defendant which were raised in the Commission's Complaint. The monetary relief will be paid in the following structured manner: by September 9, 2005, Creative Playthings, after receipt of executed releases discussed during the August 25. 2005 Settlement Conference and the Court's entry of the Consent Decree. will pay Vamar Franklin and each of the identified class-members a total' of $50,000 (Fifty Thousand Dollars); on or before September 9, 2006, a second payment of$37,500 (Thirty-Seven Thousand, Five Hundred Dollars) shall be paid to the Vamar Franklin and the class; and a final payment of $37,500 (Thirty-Seven Thousand, Five Hundred Dollars) shall be paid to Vamar Franklin and the class on or before September 9, 2007. If Creative Playthings does not make all payments as designated in the manner set forth in this Paragraph, the Court will enter ajudgment for the entire amount remaining due, plus attorneys fees, costs, and interest to be paid at the legal rate, compounded daily. The checks will be mailed to Mr. Franklin and the class of individuals at the addresses provided by the EEOC, and for purposes of timeliness, payments are considered made on the date the checks are mailed to the addresses provided by the EEOC. Defendant will mail a photocopy of each check to the EEOC, to the attention of Woody Anglade, Trial Attorney. EEOC, The Bourse, 21 South Fifth Street, Suite 400, Philadelphia, PA 19106-2515, within five days of the date of mailing of the checks to Mr. Franklin and the class-members. In order to receive the monetary relief, Mr. Franklin and the class
5

members must first each execute a release as discussed above and the said original executed release must be in the possession of Creative Playthings and/or its attorneys. If the original executed release of Vamar Franklin or any class member is received by Creative Playthings and/or its attorneys on or after September 9, 2005, Creative Playthings will have two business days from the date the release is received to mail the check to the same. Please note that late payments will be subject to the accrual of interest on the unpaid amount, calculated pursuant to 28 U.S.c. § 1961.
9. Notwithstanding anything to the contrary in paragraphs 7 or 8, if the Court does not sign and enter this Consent Decree on or before September 8, 2005 and counsel is not so advised by that date, the deadline for providing initial payments to Gerald Flanagan and his counsel, Vamar Franklin and the class will be extended by two (2) business days from the date counsel receives notice that the Court has signed and entered this Consent Decree.
POSTING OF NOTICE 10. Within ten (10) business days after entry of this Decree, or as soon as practicable, Creative Playthings shall post same-sized copies of the Notice attached as Exhibit 2 to this Decree on all bulletin boards located at its Newington, CT; Downingtown, PA; Montgomeryville. PA; Maple Shade, NJ; Berlin, NJ; Newark, DE; Gaithersburg, MD; Chantilly, VA; and Raleigh, NC facilities usually used by Defendant for communicating with employees. The Notice shall remain posted for three (3) years from the date of entry of this Decree. Counsel for Creative Playthings shall provide a copy of the Notice, and an indication of the date and location of its posting, to the EEOC's Philadelphia District Office, attention, Woody Anglade. Trial Attorney, within ten (10) days of the posting. Defendant shall permit a representative of the EEOC to enter Defendant's
'The individual monetary amounts to each claimant is listed on Exhibit 1. 6

Newington, CT; Downingtown, PA; Montgomeryville, PA; Maple Shade, NJ; Berlin, NJ; Newark, DE; Gaithersburg, MD; Chantilly, VA; and Raleigh, NC premises for purposes of verifying compliance with this Paragraph at any time during normal business hours without prior notice. Defendant shall take all reasonable steps to ensure that the posting is not altered, defaced or covered by any other material. Should the posted copies become defaced, removed, marred, or otherwise illegible, Creative Playthings agrees to as soon as practicable post a readable copy in the same manner as hereto specified.
NON-DISCRIMINATION AND ANTI-HARASSMENT POLICIES AND COMPLAINT PROCEDURES
I J. Creative Playthings' policy or policies against discrimination, harassment and retaliation and complaint procedures shall be drafted in plain and simple language, and be available in English and Spanish. Creative Playthings shall ensure that its policy or policies against discrimination, harassment and retaliation and related complaint procedures meet the following minimum criteria:
(a) State that Creative Playthings: (i) prohibits discrimination against employees on the basis of sex, race, national origin, religion and color, and prohibits retaliation in violation of Title VII; (ii) prohibits retaliation against employees for opposing employment practices they reasonably believe are discriminatory or for participating in an investigation by the EEOC or a state or local governmental agency of a charge of discrimination under Title VII; (iii) prohibits any act. policy or practice that has the effect of harassing or intimidating any employee on the hasis of sex, race, national origin, religion or color in violation of Title VII; and (iv) prohibits any act, policy or
7

practice that has the effect of creating, facilitating or permitting the existence of a work environment that is hostile to employees through acts such as physical/verbal abuse and derogatory comments based on sex, race, national origin, religion or color in violation of Title VII;
(b) Include a complaint procedure designed to encourage employees to come forward with complaints regarding violations of its policy or policies against discrimination. harassment and retaliation. which shall meet the following minimum criteria: (i) provide effective mechanism(s) for reporting incidents of discrimination, harassment and retaliation: (ii) provide that the complaints of discrimination, harassment and/or retaliation can be made either in writing or verbally; (iii) identify employees to whom an employee can make a complaint; (iv) provide a 24-hour toll-free message center with instructions in English that an employee may call to make a complaint of discrimination, harassment or retaliation; (v) provide that, upon an employee's request, Creative Playthings will offer translating assistance for filing a written complaint in English or otherwise communicating during the investigation of a complaint; (vi) encourage prompt reporting by employees; and (vii) provide assurances that complainants shall not be subjected to retaliation;
(c) Provide for prompt investigation of complaints of harassment and/or retaliation; (d) Provide for prompt communication to the complaining party of the results of the investigation and any remedial actions taken or proposed; and (e) Provide for discipline up to and including discharge of an employee or supervisor who violates Creative Playthings' policy or policies against discrimination, harassment and retaliation, and for increasingly severe discipline of repeat offenders. 12. Creative Playthings shall distribute to all of its employees and newly-hired employees at its Newington, CT; Downingtown, PA; Montgomeryville, PA; Maple Shade, N.J;
8

Berlin, NJ; Newark, DE; Gaithersburg. MD; Chantilly, VA; and Raleigh. NC facilities, its policy or policies against discrimination, harassment and retaliation within 90 days after entry of this Consent Decree. Such policy or policies will be available in English and Spanish.
13. Within 90 days after entry of this Consent Decree, Creative Playthings shall advise Woody Anglade, Trial Attorney, EEOC's Philadelphia District Office, that its policy or policies against discrimination, harassment and retaliation have been distributed to current employees via paycheck enclosure and that new employees will receive these policies and an opportunity to acknowledge receipt. Acknowledgment of receipt forms will be made available in English and Spanish. Creative Playthings will retain copies of any acknowledgment of receipt form for an employee in the employee's personnel file.
14. Creative Playthings shall twice annua11y for the duration of the Consent Decree send a copy of its policy or policies against discrimination. harassment and retaliation with each employee's paycheck.
SUPERVISOR ACCOUNTABILITY 15. Creative Playthings shall promote supervisor accountability by the following conduct: (a) Providing annual anti-discrimination training to a11 of its supervisory and managerial personnel as set forth in Paragraph 16; (b) Disciplining. lip to and including discharge, any supervisor or manager who violates Creative Playthings' policy or policies against discrimination, harassment and retaliation; (c) Imposing on all managers and supervisory personnel a duty to administer their work areas to ensure compliance with Creative Playthings' policy or policies against discrimination,
9

harassment and retaliation; and (d) Requiring all managers and supervisors to report any incidents and/or complaints of
harassment and/or retaliation of which they become aware to the Framingham, MA Corporate Office.
TRAINING 16. Defendant shall provide training on the requirements of Title VII on the following terms: (a) Defendant agrees to provide annual training sessions to all if its managers and supervisors who work at its Newington, CT; Downingtown, PA; Montgomeryville, PA; Maple Shade, NJ; Berlin, NJ; Newark, DE; Gaithersburg, MD; Chantilly, VA; and Raleigh, NC facilities by a trainer or vendor approved by the EEOC to provide training on an employee's rights under Title VII, and the employer's obligations under Title VII, with an emphasis on what constitutes unlawful harassment and differential treatment of minority employees in the workplace, how to keep Defendant free of such forms of discrimination, and what constitutes unlawful retaliation; (b) Each training session will include a live presentation by a high ranking official of Creative Playthings, emphasizing Creative Playthings' commitment to prevent discrimination and harassment; (c) Defendant shall first provide training in accordance with Paragraph 16(a) by no later than December 31, 2005. Defendant shall then also provide such training on at least one occasion in each of calendar years 2006 and 2007. 17. In addition to the training described In Paragraph 16, Defendant will provide training to all Managers and all employees and supervisors in its Human Resources Department in
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Framingham, MA, which are responsible for workers employed at Defendant's Newington, CT; Downingtown, PA; Montgomeryville, PA; Maple Shade, NJ; Berlin, NJ; Newark, DE; Gaithersburg, MD; Chantilly, VA; and Raleigh, NC facilities, regarding conducting a prompt and effective investigation into allegations, complaints, or charges of employment discrimination.
18. The annual training shall be provided by EEOC staff or Defendant shall obtain the EEOC's approval of its proposed trainer prior to each year's set of training sessions. Creative Playthings shall submit the name, address, telephone number and curriculum vitae I resume of the proposed trainer, together with the date(s) of the proposed training sessions to the EEOC within thirty (30) calendar days prior to the first day of the proposed date(s) of training. The Commission shall have ten (10) calendar days from the date of receipt of the information described above to accept or reject the proposed trainer(s). In the event the EEOC does not approve Defendant's designated trainer(s), Defendant Creative Playthings shall have ten (10) calendar days to identify an alternate trainer. The EEOC shall have ten (10) calendar days from the date of receipt of the information described above to accept or reject the alternate trainer. In the event the Commission does not approve Defendant's alternate trainer, the Commission shall designate the trainer to be retained and paid for by Creative Playthings. Creative Playthings shall have ten (10) calendar days from receipt of the Commission's recommendation to accept or reject the alternate trainer.
19. Defendant agrees to provide the EEOC with any and all copies of pamphlets, brochures, outlines or other written materials provided to the participants of the training sessions. Even though the Commission has approved of or designated a trainer to provide training for one year, it is not required to approve of or designate the same trainer for future training sessions.
11

20. Creative Playthings shall certify to the EEOC in writing within five (5) business days after the training sessions have occurred that the training has taken place and that the required personnel have attended. Such certification shall include: (i) the dates, location and duration of the training session; (ii) a copy of the registry of attendance, which shall include the name and position of each person in attendance; and (iii) a listing of all current employees, including temporary employees, as of the date of the training.
RECORD KEEPING 21. For a period of three (3) years following entry of this Decree, Defendant shall maintain and make available for inspection and copying by the Commission, records of each complaint of any incident of race, national origin and retaliation discrimination occurring at its Newington, CT; Downingtown, PA; Montgomeryville, PA; Maple Shade, N.J; Berlin, N.J; Newark, DE; Gaithersburg, MD; Chantilly, VA; and Raleigh, NC facilities. Each such report shall indicate the date the complaint was made, who made it, what was alleged, and what actions the Defendant took to resolve the matter. The Defendant shall also make records of all actions it takes to prevent race, national origin, and retaliation discrimination at its Newington, CT; Downingtown, PA; Montgomeryville, PA; Maple Shade, N.J; Berlin, N.J; Newark, DE; Gaithersburg, MD; Chantilly, VA; and Raleigh, NC facilities during the duration of this Decree. 22. Defendant shall make all documents or records referred to in Paragraph 21, above, available for inspection and copying within ten (l0) business days after the EEOC so requests. In addition, Defendant shall make available for interview all persons within its employ whom the EEOC reasonably requests for purposes of verifying compliance with this Decree and shall permit a representative of the Commission to enter Defendant's Newington, CT; Downingtown, PA;
12

Montgomeryville, PA; Maple Shade, NJ; Berlin, NJ; Newark, DE; Gaithersburg, MD; Chantilly, VA; and Raleigh, NC premises for such purposes on five (5) business days advance notice by the EEOC.
23. Nothing contained in this Decree shall be construed to limit any obligation Defendant may otherwise have to maintain under Title VII or any other law or regulation.
REPORTING 24. Creative Playthings shall furnish to the EEOC the following written reports annually for a period of three (3) years following entry of this Decree. The first report shall be due six (6) months after entry of the Decree, The final report shall be due thirty-six (36) months after entry of the Decree. Each such report shall contain: (a) A summary of the information recorded by Defendant pursuant to Paragraph 21, including the name of the complainant, the allegation of the complaint and the action taken by Defendant in response; and (b) A certification by Creative Playthings that the Notice required to be posted in Paragraph 10, above, remained posted during the entire six (6) month period preceding the report.
DISPUTE RESOLUTION 25. In the event that either party to this Decree believes that the other party has failed to comply with any provision(s) of the Decree, the complaining party shall notify the other party of the alleged non-compliance within ten (l0) days of the alleged non-compliance and shall afford the alleged non-complying party ten (10) business days to remedy the non-compliance or to satisfy the complaining party that the alleged non-complying party has complied. If the alleged non-complying party has not remedied the alleged non-compliance within ten (10) business days,
13

the complaining party may apply to the Court for appropriate relief. MISCELLANEOUS PROVISIONS
26. Each party to this Decree shall bear its own expenses, costs and attorneys' fees. 27. The terms of this Decree are and shall be binding upon the present and future representatives, agents, directors, officers, assigns, and successors of Defendant in their capacities as representatives, agents, directors and officers of Creative Playthings, and not in their individual capacities. This Paragraph shall not be construed as placing any limit on remedies available to the Court in the event that any individual is found to be in contempt for a violation of this Decree. 28. This Consent Decree shall fully and finally resolve all claims which were raised by the EEOC in its Complaint in Civil Action No. 04-CV-3243. 29. This Consent Decree shall be filed in the United States District Court for the Eastern District of Pennsylvania and shall continue to be in effect for a period of three (3) years. Any application by any party to modify or vacate this Consent Decree during such period shall be made by motion to the Court on no less than thirty (30) days notice to the other party. 30. The Court retains jurisdiction over this case in order to enforce the terms of the Consent Decree. 31. The Clerk of the District Court is hereby directed to send a file-stamped copy of this Consent Decree to counsel of record.
14

For Plaintiff EEOC:

Eric S. Drieband General Counsel

James L. Lee Deputy General Counsel

Gwendolyn Young Reams

Associate General Counsel

Washington, D.C.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

,r :( t»: (2 Li (

.~{) • . /1 / i

I UJ Jacque' e McNair

For Defendant Creative Playthings, Ltd.
~~EScqUJirLe­_ White & Williams, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395
Rodney . Gould, Esquire Rubin, ay & Gould, P.e. 205 Newbury Street P.O. Box 786 Framingham, MA 01701

Wru~rr1~_
Woody Ariglade v Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Philadelphia District Office 21 S. 5th Street, Suite 400 Philadelphia, PA 19106

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IT IS ORDERED:

~i.,LI /J 0((+ BY THE COURT:

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A 'tA B. BRODY

UNITED STATES DISTRICT JUDGE

DATE:

15

CLAIMANT 1) Vamar Franklin 2) Gene Alston 3) Ricardo Guzman 4) Marco Lena 5) Valentin Williams

EXHIBIT I

YEAR I YEAR 2 YEAR 3

$40,000

$30,000

$30,000

$4,000

$3,000

$3,000

$2,000

$1,500

$1,500

$2,000

$1,500

$1,500

$2,000

$1,500

$1,500

TOTAL $100,000 $10,000 $5,000 $5,000 $5,000

EXHIBIT 2

NOTICE TO ALL CREATIVE PLAYTHINGS' EMPLOYEES

This Notice is being posted pursuant to a Consent Decree entered by the Federal Court in EEOC, et ",I. v. Creative Playthings, Inc., Civil Action Number 04-3243 (E. PA.), in which the parties agreed to settle a lawsuit filed by the Equal Employment Opportunity Commission ("EEOC) against Creative Playthings ("Creative Playthings").
Title VlI of the Civil Rights Act of 1964, 42 U.S.c. Section 2000e, ~~, as amended, ("Title V[J"), prohibits discrimination against employees and applicants for employment based upon race, color, sex, religion or national origin. Title VII further prohibits retaliation against employees or applicants who avail themselves of their rights under Title VlI by engaging in protected activities, such as opposing employment practices believed to be discriminatory, filing a charge of discrimination and/or testifying or participating in a Commission investigation. The EEOC is a federal agency which investigates charges of unlawful employment discrimination. The EEOC has authority to bring lawsuits in Federal Court to enforce Title VII.

In its lawsuit, the EEOC alleged that Creative Playthings retaliated against an employee when it terminated his employment, because he opposed employment practices he believed to be discriminatory under Title VlI. The Commission further alleged that Defendant subjected a class of Black and Hispanic employees to differential terms and conditions of employment, when they were not hired or promoted for available positions, and when they were subjected to a hostile work environment based on their race and/or national origin, in violation of Title VlI. Creative Playthings denies these allegations.

To resolve the case, Creative Playthings and the EEOC have entered into a Consent Decree which provided, among other things, that: (I) Creative Playthings will not unlawfully discriminate on the basis of race/national origin in the future; (2) Creative Playthings will not retaliate against any person because she or he opposed any practice made unlawful by Title VlI; and (3) Creative Playthings will train all managers and supervisors at its Newington, CT, Downingtown, PA; Montgomeryville, PA; Maple Shade, NJ; Berlin, NJ; Newark, DE; Gaithersburg, MD; Chantilly, V A; and Raleigh, NC facilities regarding race/national origin discrimination and Creative Playthings' policy prohibiting race/national origin discrimination.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE

This Notice must remain posted for three years from the date below and must not be altered,

defaced or covered by any other material. Any questions about this Notice or compliance with

its terms may be directed to the: Regional Attorney, EEOC Philadelphia District Office, 21

South 5th Street, Philadelphia, PA 19106. The EEOC's telephone number is (215) 440-2600,

and the EEOC has employees available who speak languages other than English.

By: For:

C \ · fu/JJJ' 7 'oL~ Ii }, /1 ~qual ployment Opportunity

Commission

By: For: Creative Playthings, Ltd.

 
 375 F.Supp.2d 427 (2005)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and Gerald Flanagan, Plaintiffs, v.
CREATIVE PLAYTHINGS, LTD., Defendant.
No. Civ.A.04-CV-3243.
United States District Court, E.D. Pennsylvania.
June 21, 2005.
4289 *428 *429 Iris Santiago Flores, Jacqueline H. McNair, Judith A. O'Boyle, Woody Anglade, Philadelphia, PA, Robert J. Dudash, Robert James Jackson Associates, Springfield, PA for Plaintiffs.
David E. Edwards, White and Williams LLP, Philadelphia, PA, Rodney E. Gould, Rubin Hay and Gould P.C., Framingham, MA, for Defendant.
MEMORANDUM AND ORDER
ANITA B. BRODY, District Judge.
I. INTRODUCTION
Plaintiff Equal Employment Opportunity Commission ("EEOC") brought this action against Creative Playthings, Ltd. ("Creative Playthings") on July 9, 2004, alleging retaliatory firing and other unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). On October 14, 2004, Gerald Flanagan ("Flanagan"), the employee whose termination is the basis for this action, filed a motion to intervene. On October 28, 2004, Flanagan's motion to intervene was granted. On November 4, 2004, Flanagan filed an intervenor complaint, in which he brought claims for wrongful discharge and retaliation under Title VII and the Pennsylvania Human Relations Act ("PHRA"), Pa. Stat. Ann. tit. 43, §§ 951-963 (West 430 1991 & Supp.2005), along with various state-law claims including trade libel and defamation, interference *430 with contracts and business, intentional infliction of mental and emotional distress, and breach of promise. Before me now is Creative Playthings's motion to dismiss the state-law claims in Flanagan's intervenor complaint.
II. BACKGROUND
The facts as alleged in the complaint are as follows. Creative Playthings is a corporation that is in the general business of manufacturing, distributing, and selling playground swing sets. (Intervenor Compl. ¶¶ 8, 27.) Flanagan was initially hired by Creative Playthings on July 26, 2000 as Store Manager for Creative Playthings's West Chester, Pennsylvania store. (Id. at ¶ 9.) Within eight weeks of being hired, Flanagan was promoted to District Manager. (Id. at ¶ 10.) This promotion made him responsible for several Creative Playthings's stores in the southeastern Pennsylvania region. (Id.) In June 2002, Flanagan was offered a promotion to assume exclusive operation for Creative Playthings's Commercial Division, and he was informed that his salary would be $150,000 per year plus $50,000 or more yearly in commissions or bonuses. (Id. at ¶ 11.)
As part of this promotion to the Commercial Division, Flanagan was given the responsibility for recommending two District Managers who would replace him in the southeastern Pennsylvania region. (Id. at ¶ 12.) Flanagan recommended Vamar Franklin and Dennis Anderson, both of whom are African-American. (Id.) Creative Playthings refused to promote Vamar Franklin and Dennis Anderson as District Managers because of their race, and on July 5, 2002, Creative Playthings proceeded to terminate Flanagan's employment without notice. (Id. at ¶ 15-17.)
On or about July 12, 2002, Flanagan filed a charge against Creative Playthings with the EEOC alleging wrongful discharge and violation of and deprivation of his rights under Title VII. (Id. at ¶ 4.) In March 2003, Creative

Playthings filed a petition for a temporary restraining order alleging that Flanagan violated a non-compete agreement. (Id. at ¶ 23(a).) That petition had no legal basis and was dismissed by the court. (Id.) Creative Playthings proceeded to pursue an equity action against Flanagan for violation of a non-compete agreement after the petition for a temporary restraining order was dismissed. (Id. at ¶ 23(b).) Creative Playthings attacked Flanagan's integrity, character, and reputation. (Id. at ¶ 24.) Creative Playthings also intentionally and maliciously made, distributed, and published accusations that Flanagan was untrustworthy and would not pay creditors. (Id. at ¶ 25.)
Following its investigation, the EEOC issued a determination that there was cause for finding a Title VII violation. (Id. at ¶ 5.) The EEOC then filed the present lawsuit against Creative Playthings on July 9, 2004, alleging violations of Title VII. (Compl. at 1.) On October 14, 2004, Flanagan filed a motion to intervene. On October 26, 2004, Flanagan's motion to intervene was granted, and on November 4, 2004, he filed his intervenor complaint, alleging violations of Title VII, the PHRA, and various state-law causes of action, specifically trade libel and defamation, interference with contract and business, intentional infliction of mental and emotional distress, and breach of promise. (Intervenor Compl. ¶¶ 1, 32.) On November 17, 2004, Creative Playthings filed the motion to dismiss that is currently before me.
III. STANDARD OF REVIEW
Creative Playthings filed this motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 431 Rule 12(b)(6) permits parties to file a motion to *431 dismiss for "failure to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). In addition to asserting that Flanagan failed to state claims upon which relief could be granted, Creative Playthings also asserts that the claims in the intervenor complaint are beyond the permissible scope of the claims that plaintiff can bring as an intervenor in the present action. This assertion relates to the court's subject matter jurisdiction over the claims, which is more properly brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Mortensen v. First Fed. Sav. & Loan Assoc., 549 F.2d 884, 891 (3d Cir.1977) (explaining that 12(b)(6) motions necessitate a ruling on the merits while other motions to dismiss deal with procedural defects, and 12(b)(1) motions in particular address the trial court's power to hear the case). Because Creative Playthings's motion to dismiss involves both a non-waivable challenge to subject matter jurisdiction that should be brought pursuant to Rule 12(b)(1), and a challenge to the legal sufficiency of the complaint brought pursuant to Rule 12(b)(6), I will set forth the standard of review for each type of challenge.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the lack of subject matter jurisdiction over a claim. Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005) (distinguishing nonjurisdictional issues from jurisdictional issues and holding that only jurisdictional issues should be evaluated under the standard for a Rule 12(b)(1) motion). When a motion to dismiss challenges subject matter jurisdiction, that the court must consider whether or not raised by the defendant, the court must distinguish between "12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings." Mortensen, 549 F.2d at 891. In ruling on 12(b)(1) motions to dismiss that attack the complaint on its face, "the court must consider the allegations of the complaint as true."[1] Id.; see also Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). In ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must "accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). A claim may be dismissed only "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).
IV. DISCUSSION
Flanagan intervenes in this action with claims against defendant under Title VII, the PHRA, and various state-law claims. Creative Playthings does not dispute Flanagan's right to intervene in this Title VII civil action. (Def.'s Mem Law Supp. Mot. Dismiss at 4.) Creative Playthings does, however, dispute the viability of some of Flanagan's claims, specifically the state-law claims for breach of promise, trade libel and defamation, infliction of mental and

432 emotional distress, interference with business relationships, dealings, *432 and contracts, and punitive damages. Creative Playthings argues that the court cannot or should not exercise jurisdiction over the subject matter of the complaint and that Flanagan failed to assert claims for which relief can be granted. I will first discuss the jurisdictional concerns as they relate generally to all of the disputed claims. Then I will address each claim specifically to determine whether it is appropriate to exercise jurisdiction over the claim and whether the claim should be dismissed on other grounds.
A. Overview
Creative Playthings seeks to dismiss Flanagan's state-law claims, other than the claim under the PHRA, on the basis that those claims are outside of the scope of the claims raised by the EEOC in the original complaint. (Def.'s Mem. Law Supp. Mot. Dismiss at 4.)
This court has original jurisdiction pursuant to 28 U.S.C. § 1331 for the claims that arise under federal law[2] and supplemental jurisdiction pursuant to 28 U.S.C. § 1367 for related state-law claims. Section 1367 provides as follows:
Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
28 U.S.C. § 1367. Subsection (b) applies to cases in which original jurisdiction "is founded solely on section 1332 of this title [diversity jurisdiction]," and subsection (c) provides only four instances in which district courts may decline to exercise supplemental jurisdiction,[3] none of which apply to the claims in the present case. Id. Therefore, the court must exercise supplemental jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." Id.[4]
433 *433 The Third Circuit has interpreted 28 U.S.C. § 1367 to mean that "a district court may exercise supplemental jurisdiction where state-law claims share a `common nucleus of operative fact' with the claims that supported the district court's original jurisdiction." De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 308 (3d Cir.2003) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Accordingly, the exercise of supplemental jurisdiction over Flanagan's state-law claims is appropriate if the state-law claims share a "common nucleus of operative fact" with the underlying federal claim.
The underlying federal claim in the intervenor lawsuit by Flanagan is a Title VII claim that Creative Playthings terminated Flanagan in retaliation for engaging in protected activity. In order to determine whether the various state-law claims share a common nucleus of operative fact with the retaliation claim, it is necessary to look at the facts that are relevant to the retaliation claim. A prima facie Title VII retaliation claim[5] includes the following elements: (1) the plaintiff was engaged in protected employee activity, (2) the employer took an adverse employment action at the time of or following the protected activity, and (3) the protected activity and the adverse employment action are causally linked. Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir.2001) (citations omitted). Accordingly, the alleged facts that will be relevant to the retaliation claim in the present case include (1) facts about plaintiff's protected activity: i.e. facts related to Flanagan's recommendation that two employees who were African-American be promoted and facts related to Flanagan's pursuit of a complaint with the EEOC; (2) facts related to adverse employment action taken by the employer: i.e. facts related to Flanagan's abrupt termination weeks after he recommended the promotion of the two employees and facts related to actions depriving him of future employment opportunities after he was terminated;[6] and (3) facts that would illustrate a causal link between the protected activity and the adverse employment action: i.e. facts demonstrating the presence or absence of legitimate reasons, unrelated to Flanagan's participation in protected activities, for terminating Flanagan or retaliating against Flanagan following his termination. Determining whether Creative Playthings terminated Flanagan for legitimate reasons requires inquiry into Flanagan's performance, and, therefore, facts related to whether Flanagan was offered a promotion and the terms of that offer are relevant to his retaliation claim. In order to determine whether to exercise supplemental jurisdiction over Flanagan's state-

law claims, I will examine each count challenged in the motion to dismiss to determine whether it shares a 434 "common nucleus of operative fact" with the retaliation claim.[7] In addition, for each claim over *434 which the
exercise of supplemental jurisdiction is appropriate, I will address Creative Playthings's non-jurisdictional arguments as to the legal sufficiency of the claim.
B. Viability of Specific Claims
1. Third Count 0907 Breach of Promises
a. Jurisdiction
The Third Count listed in Flanagan's complaint alleges that Creative Playthings breached its promise to promote Flanagan to operate Creative Playthings's Commercial Division for a salary of $150,000 per year plus $50,000 or more yearly in commissions or bonuses. (Intervenor Compl. ¶¶ 11, 32.) Both this claim and the underlying Title VII claims share a common nucleus of operative fact because they both require investigation of the existence and terms of the alleged promise or contract.[8] Therefore, the exercise of supplemental jurisdiction over this claim is appropriate in the present case.
b. 12(b)(6) Grounds to Dismiss
Creative Playthings also argues that this count should be dismissed for failure to state a claim because there was no actionable employment contract between Flanagan and Creative Playthings. Creative Playthings notes that Flanagan does not set forth the existence of any written contract (Def. Mem. Law Supp. Mot. Dismiss at 5), but this is unnecessary at this stage of the litigation. Flight Sys., Inc. v. Elec. Data Sys. Corp., 112 F.3d 124, 127-29 (3d Cir.1997) (analyzing a motion to dismiss in which the statute of frauds was raised as an affirmative defense, and holding that allegations of the existence of an oral contract will nonetheless preclude dismissal of the complaint if the statute of frauds would not void the contract at issue). Furthermore, Creative Playthings does not argue that Flanagan failed to assert the existence of an oral contract.
Creative Playthings posits that because Flanagan has not demonstrated that there was a contract other than an at-will contract, Flanagan has no claim under Pennsylvania law. Whether there was a contract and whether it was other than an at-will contract, however, is a question of fact not properly addressed at this stage.[9] Flanagan could prove a set of facts consistent with the allegations that would entitle him to relief, and, therefore, the motion to dismiss as to the Third Count is denied.
2. Fourth Count 0907 Trade Libel and Defamation
a. Jurisdiction
The Fourth Count alleges that Creative Playthings carried out trade libel and defamation against Flanagan. (Id. at ¶ 33.) This requires investigation of the alleged libelous and defamatory statements, which might overlap with the Title VII investigation as to the reason that Flanagan was fired and would overlap with the Title VII investigation as to retaliatory actions following Flanagan's charge with the EEOC. The exercise of supplemental jurisdiction over this claim is appropriate in the present case because this claim and the Title VII claim share a common nucleus of operative fact.
435 *435 b. 12(b)(6) Grounds to Dismiss
Creative Playthings directs the court's attention to the fact that Flanagan brought a similar trade libel and defamation claim that is currently pending in state court and argues that Flanagan should not be permitted to bring that claim in the present action. As a general rule, a plaintiff may litigate the same issue in both state and federal courts simultaneously. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); see also Spring City Corp. v. Am. Bldgs., Co., 193 F.3d 165, 172 (3d Cir.1999) (citing Univ. Of Maryland v. Peat Marwick Main & Co., 923 F.2d 265, 275-76 (3d Cir.1991)). As the Supreme Court pointed out in Colorado River, federal courts have a "virtually unflagging obligation... to exercise the jurisdiction given them" by Congress. 424 U.S. at 817, 96 S.Ct. 1236; Ryan v. Johnson, 115 F.3d 193, 195 (3d Cir.1997). Accordingly, the Court determined that there were very limited circumstances in which it would be

appropriate for a federal court to defer to pending state court proceedings. Colorado River, 424 U.S. at 817, 96 S.Ct. 1236; Ryan, 115 F.3d at 195.
A federal court may only abstain from exercising jurisdiction when the actions in federal court and state court are "parallel" and when abstention is appropriate based on the factors set forth in Colorado River and its progeny. Ryan, 115 F.3d at 196. Two cases are generally parallel "when they involve the same parties and claims." Id. Although the parties in the present action dispute whether the same claims are involved, I will assume for purposes of this analysis that the cases are parallel. Therefore, the second question is whether there are exceptional circumstances warranting abstention based on the factors the federal court must consider. The decision as to whether to abstain should rest "on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). The factors set forth in Colorado River and its progeny include the following:
(1) which court first assumed [in rem] jurisdiction over property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which jurisdiction was obtained; (5) whether federal or state law controls; and (6) whether the state court will adequately protect the interests of the parties.
Spring City Corp. 193 F.3d at 171. The present case does not involve real property, and there is no inconvenience in the federal forum because Creative Playthings is already involved in the underlying suit by the EEOC in this forum and because Creative Playthings has stores in Southeastern Pennsylvania. Courts have construed the remaining factors very narrowly.
The third factor, avoidance of piecemeal litigation, is only met "when there is evidence of a strong federal policy that all claims should be tried in the state courts." Ryan, 115 F.3d at 197-98; see also Spring City Corp. 193 F.3d at 172 (holding that Ryan represents the applicable law under Third Circuit and Supreme Court precedent). I am aware of no such federal policy regarding the defamation and libel claims at issue in the present case.
The fourth factor, the order in which jurisdiction was obtained, "is to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand," and, in particular, courts should consider the amount of progress 436 that has been made in each action rather than focusing on the date the complaint was filed. Moses H. *436 Cone Mem'l Hosp., 460 U.S. at 21, 103 S.Ct. 927. According to Creative Playthings, Flanagan began his state court action on or about July 7, 2003, but his amended complaint was not filed until August 19, 2004 (Def. Mot. Dismiss at 8),[10] which is more than a month after the present federal court action was filed on July 9, 2004. Furthermore, the defendants in the state court action objected to the amended complaint, and Creative Playthings represents that as of the date that it filed its motion to dismiss in the present case, November 17, 2004, defendants' objections to the amended complaint were still pending before the state court. (Id.) Therefore, it appears that the state court is no further along in addressing the merits of the claim than the federal court, and this factor does not weigh in favor of abstention.
The fifth factor, whether federal or state law controls, has been limited by the Third Circuit as follows: "while the presence of federal issues militates against abstention, the converse cannot be said; abstention cannot be justified merely because a case arises entirely under state law." Ryan, 115 F.3d at 199. Because trade libel and defamation claims are governed by state law, this factor is immaterial to the analysis of whether abstention is appropriate in the present case.
The last factor, whether the state court will adequately protect the interests of the parties, has also been limited by the Third Circuit. According to the court in Ryan,"the mere fact that the state forum is adequate does not counsel in favor of abstention ... When the state court is adequate... the factor carries little weight." Id. at 200. In the present case, the state court is an adequate forum, and, therefore, this factor carries little weight.
None of the factors set forth by Colorado River and its progeny weigh in favor of abstention in the present case. Furthermore, the balancing of the factors should be "heavily weighted in favor of the exercise of jurisdiction." Moses H. Cone Mem'l Hosp., 460 U.S. at 16, 103 S.Ct. 927. Therefore, Colorado River abstention is not appropriate for Flanagan's defamation and libel claims.[11] Likewise, it is not appropriate to stay the claims pending the outcome of the state court proceedings. Spring City Corp., 193 F.3d at 171 (holding that "when a

district court relies on the Colorado River doctrine to stay a case in federal court because it is duplicative with a state court proceeding, such a stay will generally have the `practical effect of a dismissal,' by putting a party `effectively out of [federal] court'").
Creative Playthings's final argument is that the defamation and trade libel claims should be dismissed as barred by the statute of limitations. A claim that is barred by a statute of limitations can be dismissed pursuant to a Rule 12(b) motion "when the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations." Hanna v. United States, 514 F.2d 1092, 1094 (3d Cir.1975). However, a claim is not properly dismissed pursuant to a Rule 12(b) motion if there is a question of fact as to whether the claim was brought within the statute of limitations. Id. at 1095. Flanagan's complaint does not set forth the dates 437 of the alleged incidents *437 underlying the trade libel and defamation claims. (Intervenor Compl. ¶¶ 24, 25, 33.) A question of fact remains as to whether Flanagan's claims are barred by the statute of limitations. Therefore, Creative Playthings's motion to dismiss as to the Fourth Count is denied.
3. Fifth Count 0907 Infliction of Mental and Emotional Distress and Turmoil
a. Jurisdiction
The Fifth Count alleges that Creative Playthings subjected Flanagan to mental and emotional distress and turmoil. (Id. at ¶ 34.) Although the complaint does not provide detail as to the facts that would support this claim, it could be related to the termination of Flanagan that was allegedly for retaliatory purposes. The mental and emotional distress and turmoil claim could also be related to the facts underlying the defamation and libel claims that may be part of the further retaliation alleged by Flanagan. Assuming that to be true, this claim and the Title VII claim share a common nucleus of operative fact, and the exercise of jurisdiction over this claim is appropriate.
b. 12(b)(6) Grounds to Dismiss
Creative Playthings also argues that this claim is barred by the statute of limitations, but the complaint does not specify dates for the alleged conduct and further indicates that Creative Playthings continues to subject Flanagan to mental and emotional distress and turmoil. Therefore, questions of fact remain that prevent dismissal on that ground.
Creative Playthings asserts that Flanagan has failed to state a claim because the alleged conduct was not sufficiently outrageous to constitute intentional infliction of emotional distress.[12] Although the Pennsylvania Supreme Court has never expressly recognized a cause of action for intentional infliction of emotional distress, it cited Restatement (Second) of Torts § 46 as setting forth the minimum elements necessary to sustain a cause of action for intentional infliction of emotional distress. Taylor v. Albert Einstein Med. Ctr., 562 Pa. 176, 754 A.2d 650, 652 (2000). According to § 46 the tort of "outrageous conduct causing severe emotional distress" is defined as follows:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Restatement (Second) of Torts § 46(1). The Pennsylvania Supreme Court has stated that "[c]ases which have found a sufficient basis for a cause of action of intentional infliction of emotional distress have presented only the most egregious conduct." Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 (1998) (citations omitted). The court in Hoy also quoted the Third Circuit approvingly as noting, "it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Id. (quoting Cox v. Keystone Carbon, 861 F.2d 390, 395 (3d Cir.1988)).
Based on Flanagan's pleadings, issues of fact remain as to whether the alleged conduct was sufficiently outrageous. Because a claim may only be dismissed "if it is clear that no relief could be granted under any set of 438 facts that could be proved consistent *438 with the allegations," Swierkiewicz, 534 U.S. at 514, 122 S.Ct. 992 (citing Hishon, 467 U.S. at 73, 104 S.Ct. 2229), it is not appropriate to dismiss this claim.

Furthermore, Creative Playthings argues that Flanagan's claim is preempted by the Pennsylvania Workers' Compensation Act. The Pennsylvania Workers' Compensation Act provides that "[t]he liability of an employer under this act shall be exclusive ... in any action at law or otherwise on account of any injury or death...." Pa. Stat. Ann. tit. 77 § 481 (West 2002). "Injury" is defined in relevant part as "an injury to an [employee] ... arising in the course of his employment and related thereto...." Pa. Stat. Ann. tit. 77 § 411(1) (West 2002). Pennsylvania's Workers' Compensation Act is the exclusive remedy for injuries that are sustained during the course of employment and that are related to the employment, including injuries resulting from intentional or negligent infliction of emotional distress arising out of an employment relationship. Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 940 (3d Cir.1997) (citations omitted). Therefore, insofar as the Fifth Count of Flanagan's intervenor complaint alleges intentional or negligent infliction of emotional distress arising out of his employment relationship with Creative Playthings, this claim is dismissed.
The complaint alleges, however, that the infliction of mental and emotional distress and turmoil has continued. This indicates that the claim refers, not only to the times when Flanagan was an employee of Creative Playthings, but also to times when Flanagan was not an employee of Creative Playthings. A claim by a plaintiff against a former employer for conduct that occurred after the termination of employment and that did not arise out of the course of employment or relate thereto is not preempted by the Pennsylvania Workers' Compensation Act. Pa. Stat. Ann. tit. 77 § 411(1). Therefore, insofar as the Fifth Count of Flanagan's intervenor complaint alleges infliction of emotional distress that did not arise out of the course of Flanagan's employment with Creative Playthings, Creative Playthings's motion to dismiss is denied.
4. Sixth Count 0907 Interfering with Business Relationships, Dealings, and Contracts
a. Jurisdiction
The Sixth Count alleges that Creative Playthings has interfered with or attempted to interfere with Flanagan's business relationships, dealings, and contracts, and has acted to deprive Flanagan of gainful employment. (Id. at ¶ 35.) Although the specific facts that underlie this claim are not explicit, the factual basis for the claim seems to be that Creative Playthings filed a law suit alleging that Flanagan violated a non-compete agreement following Flanagan's termination and that Creative Playthings allegedly attacked Flanagan's integrity, character, and reputation. The facts underlying this claim appear to be related to the facts underlying Flanagan's retaliation claim because Flanagan alleges that Creative Playthings retaliated against him after he filed a complaint with the EEOC. Therefore, the Sixth Count may share a common nucleus of operative fact with Flanagan's Title VII action and should not be dismissed at this time.
b. 12(b)(6) Grounds to Dismiss
Creative Playthings also argues that this claim is barred by the statute of limitations, but the complaint does not specify dates for the alleged conduct. Therefore, questions of fact remain that prevent dismissal on that ground, 439 and Creative Playthings's *439 motion to dismiss as to the Sixth Count is denied.
5. Seventh Count 0907 Punitive Damages
a. Jurisdiction
The Seventh Count regarding punitive damages is not a distinct claim from the other claims, as discussed in more detail to follow, and, therefore, is based on the same underlying facts.
b. 12(b)(6) Grounds to Dismiss
Creative Playthings argues that the claim for punitive damages is improper because there is no independent cause of action for punitive damages. While Creative Playthings correctly states that there is no independent cause of action for punitive damages because punitive damages are an element of the damages arising out of the initial cause of action, Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 802 (1989) cited in Hutchison v. Luddy, 870 A.2d 766, 772 (Pa.2005), this does not require dismissal of the Seventh Count.

Flanagan's complaint includes claims that could potentially support a claim for punitive damages, and, therefore, it should not be dismissed for failure to state a claim.[13]
V. CONCLUSION
For the foregoing reasons, Creative Playthings's motion to dismiss is granted in part and denied in part. It is granted insofar as the Fifth Count of Flanagan's intervenor complaint alleges intentional or negligent infliction of emotional distress arising out of his employment relationship with Creative Playthings, and it is denied as to the remainder of the Fifth Count and denied as to all other counts.
ORDER
AND NOW this __ 21st ___ day of June, 2005, upon consideration of Creative Playthings's motion to dismiss, Flanagan's response, and Creative Playthings's reply, it is ORDERED that the motion to dismiss (Docket # 16) is GRANTED IN PART and DENIED IN PART.
0905 It is GRANTED as to the portion of the Fifth Count of Flanagan's intervenor complaint alleging infliction of emotional distress arising out of Flanagan's employment relationship with Creative Playthings.
0905 It is DENIED as to the portion of the Fifth Count of Flanagan's intervenor complaint alleging infliction of emotional distress occurring after Flanagan's employment was terminated.
0905 It is FURTHER DENIED as to the Third, Fourth, Sixth, and Seventh Counts of Flanagan's intervenor complaint.
[1] All defendant has submitted for the court to consider regarding dismissal is the complaint. Therefore, the analysis of subject matter jurisdiction at this stage of the litigation is necessarily a facial one.
[2] In addition, 28 U.S.C. § 1343(4) provides that federal district courts have original jurisdiction over civil actions "to recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote."
[3] The circumstances under which a district court may decline to exercise supplemental jurisdiction over a claim are as follows:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. 1367(c).
[4] Section 1367 specifically states that it applies to "claims that involve the joinder or intervention of additional parties." 28 U.S.C. § 1367; see also Dev. Fin. Corp. v. Alpha Hous. & Health Care, Inc., 54 F.3d 156, 161 (3d Cir.1995) (analyzing an intervenor's claim and holding that because the intervenor had satisfied the elements of § 1367 and did not fall within one of the statutory exceptions to the exercise of jurisdiction, "a failure to exercise supplemental jurisdiction over [the intervenor's] claims would be an abuse of discretion"); Salton, Inc. v. Philips Domestic Appliances & Personal Care B.V., 391 F.3d 871, 881 (7th Cir.2004) (stating as dicta that, in a suit that has a jurisdictional basis other than diversity, once a party has intervened, that party can invoke supplemental jurisdiction pursuant to § 1367 for non-federal claims).
[5] Title VII provides as follows:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by this title [42 USCS §§ 2000e-2000e-17], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title [42 USCS §§ 2000e-2000e-17].
42 U.S.C. § 2000e-3.
[6] Creative Playthings does not contest the allegation that Flanagan was "additionally retaliated against after pursuing his charge and complaint with the EEOC" (Intervenor Compl. ¶ 30), and, therefore, I will assume without deciding that the facts related to the retaliation following Flanagan's pursuit of his charge and complaint with the EEOC are relevant to the retaliation claim.
[7] The first two counts listed in Flanagan's complaint are not at issue in the present motion to dismiss.
[8] The retaliation claim will require an investigation of the alleged promise to promote Flanagan because that is relevant to Flanagan's performance and whether he was terminated for legitimate reasons, as well as whether he was subject to an adverse employment action.
[9] While Flanagan's objection to the motion to dismiss appears to be based on the assumption that Flanagan's employment was based on an at-will contract, he does not explicitly make that admission. (Pl.'s Mem. Law Supp. Resp. Def.'s Mot. Dismiss at 6.)
[10] There was a long delay between the initial summons and the first amended complaint, because the case was removed to federal court and then remanded back to state court. (Def. Mot. Dismiss at 8.) Following the remand, Flanagan filed his complaint, but the case was further delayed because the defendants objected to the complaint and their objections were sustained. (Id.)
[11] This is my ruling regardless of my speculations at the conference held on October 26, 2004.
[12] Creative Playthings assumes, and Flanagan does not contest this assumption, that Flanagan is asserting a claim of intentional infliction of emotional distress rather than negligent infliction of emotional distress. (Def. Mem. Law Supp. Mot. Dismiss at 12.)
[13] It may be that Flanagan should have included his request for punitive damages in the counts setting forth the underlying claims rather than to list it as a separate count, but that is a matter of form that does not need to be addressed in this motion to dismiss.
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 United States District Court Eastern District of Pennsylvania - Docket R... https://ecf.paed.uscourts.gov/cgi-bin/DktRpt.pl?126456989313672-L_3...
CLOSED, SEALDC, STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:04-cv-03243-AB

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. CREATIVE PLAYTHINGS, INC. Assigned to: HONORABLE ANITA B. BRODY Cause: 42:2000 Job Discrimination (Race)

Date Filed: 07/09/2004 Date Terminated: 09/13/2005 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

represented by IRIS SANTIAGO FLORES EEOC 21 S. 5TH ST., STE. 400 PHILADELPHIA, PA 19106 215-440-2684 Fax: 215-440-2828 Email: Iris.Santiago-Flores@eeoc.gov TERMINATED: 10/07/2004 LEAD ATTORNEY

JACQUELINE H. MCNAIR EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 21 S. 5TH ST STE 400 PHILADELPHIA, PA 19106 215-440-2687 LEAD ATTORNEY ATTORNEY TO BE NOTICED

JUDITH A. O'BOYLE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 21 S. 5TH ST STE 400 PHILADELPHIA, PA 19106 215-440-2687 Email: judith.oboyle@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

WOODY ANGLADE EEOC 21 SOUTH 5TH STREET SUITE 400 PHILADELPHIA, PA 19106

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Intervenor Plaintiff GERALD FLANAGAN
V. Defendant CREATIVE PLAYTHINGS, LTD.
Intervenor Defendant CREATIVE PLAYTHINGS, LTD.

215-440-2814 Email: woody.anglade@eeoc.gov ATTORNEY TO BE NOTICED
represented by ROBERT J. DUDASH 5030 STATE ROAD SUITE 2-600 DREXEL HILL, PA 19026 610-623-2687 Email: rjdattorney@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DAVID E. EDWARDS WHITE AND WILLIAMS LLP 1800 ONE LIBERTY PLACE PHILADELPHIA, PA 19103 Email: edwardsd@whiteandwilliams.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
RODNEY E. GOULD RUBIN HAY AND GOULD P.C. 205 NEWBURY STREET POST OFFICE BOX 786 FRAMINGHAM, MA 01701-0786 508-875-5222 Email: rgould@rhglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DAVID E. EDWARDS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RODNEY E. GOULD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

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07/09/2004 07/09/2004 07/09/2004 08/16/2004 08/23/2004
09/09/2004 09/09/2004 09/10/2004 09/17/2004
10/07/2004 10/14/2004
10/28/2004

1 COMPLAINT against CREATIVE PLAYTHINGS, INC. , filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.(tj, ) (Entered: 07/09/2004)
Summons Issued; 1 Mailed to counsel 7/9/04 as to CREATIVE PLAYTHINGS, INC. (tj, ) (Entered: 07/09/2004)
DEMAND for Trial by Jury by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (tj, ) (Entered: 07/09/2004)
2 Affidiavit of Service of JACKEY B. GRIFFIN re: service of Summons and Complaint upon JARED KANE on behalf of DEFENDANT CREATIVE PLAYTHINGS, INC. by Personal Servie on 8/5/2004, answer due 8/25/2004. (jpd) (Entered: 08/16/2004)
3 STIPULATION AND ORDER THAT DEFENDANT CREATIVE PLAYTHINGS, INC. SHALL HAVE UNTIL 9/10/2004 IN WHICH TO ANSWER THE PLAINITFFS COMPLAINT. SIGNED BY JUDGE ANITA B. BRODY ON 8/23/04. 8/23/04 ENTERED AND COPIES MAILED AND FAXED BY CHAMBERS ON 8/20/04. (jpd) (Entered: 08/23/2004)
4 DEMAND for Trial by Jury by CREATIVE PLAYTHINGS, INC., Certificate of Service. (EDWARDS, DAVID) Modified on 9/13/2004 (md) (Entered: 09/09/2004)
5 Defendant's ANSWER to Complaint, with Affirmative Defenses, Jury Demand, and Certificate of Service, filed by CREATIVE PLAYTHINGS, INC. (EDWARDS, DAVID) Modified on 9/13/2004 (md) (Entered: 09/09/2004)
6 NOTICE of Hearing:SCHEDULING CONFERENCE IS SET FOR 9/27/2004 04:30 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE ANITA B. BRODY. (9/10/04) ENTERED AND COPIES SENT VIA ECF AND U.S. MAIL.(mo, ) (Entered: 09/10/2004)
7 ORDER THAT THE RULE 16 CONFERENCE SCHEDULED FOR MONDAY, SEPTEMBER 27, 2004 AT 4:30 P.M. IS CANCELED AND RESCHEDULED FOR 10/26/2004 04:30 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE ANITA B. BRODY.SIGNED BY JUDGE ANITA B. BRODY ON 09/17/2004. 09/17/2004 ENTERED AND COPIES VIA ECF AND U.S. MAIL.(mo, ) (Entered: 09/17/2004)
8 Praecipe to Substitute Attorney Iris A. Santiago-Flores filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Certificate of Service. (ANGLADE, WOODY) Modified on 10/8/2004 (np). (Entered: 10/07/2004)
9 MOTION TO INTERVENE FILED BY GERALD FLANAGAN.MEMORANDUM OF POINTS, CERTIFICATE OF SERVICE. (Attachments: # 1 CERTIFICATE OF SERVICE# 2 MEMORANDUM# 3 PROPOSED ORDER# 4 INTERVENOR COMPLAINT AND (5) JURY DEMAND)(wgc, ) (Entered: 10/14/2004)
10 ORDER THAT THE MOTION TO INTERVENE BY GERALD FLANAGAN (DOCKET ENTRY #9) IS GRANTED AS STATED ON THE RECORD OF 10/26/04. SIGNED BY JUDGE ANITA B. BRODY ON 10/28/04.10/28/04 ENTERED AND COPIES MAILED AND E-MAILED BY CHAMBERS ON 10/28/04. (jpd) (Entered: 10/28/2004)

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10/28/2004 11/04/2004 11/05/2004 11/10/2004 11/12/2004
11/17/2004 12/01/2004 12/01/2004 12/01/2004 12/01/2004 12/06/2004
12/10/2004

11 Minute Entry for RULE 16 CONFERENCE held before Judge ANITA B. BRODY on 10/26/04: Counsel move for the admission of Mr. RODNEY E. GOULD: MOTION TO INTERVENE GRANTED AS STATED ON THE RECORD: DISCOVERY SET FOR 5/26/05. (jpd, ) (Entered: 10/29/2004)
12 Intervenor COMPLAINT, filed by GERALD FLANAGAN against DEFENDANT CREATIVE PLAYTHINGS, LTD., Certificaet of Service. (Attachments: # 1 Certificate of Service). (jpd) (Entered: 11/04/2004)
13 TRANSCRIPT of Proceedings held on 10/26/04 before Judge BRODY. Court Reporter: JAMES SCHEIDT. IN CHAMBERS-RULE 16 CONFERENCE. (jl, ) (Entered: 11/05/2004)
14 Minute Entry for RULE 16 CONFERENCE held before Judge ANITA B. BRODY on 10/26/04 (jpd). (Entered: 11/12/2004)
15 ORDER that DISCOVERY DUE BY 5/26/2005, MOTIONS IN LIMINE DUE BY 6/23/2005, DISPOSITIVE MOTIONS DUE JUNE 23, 2005, PLAINTIFF PRETRIAL MEMO DUE BY 7/7/2005. DEFENDANT PRETRIAL MEMO DUE BY 6/23/2005 AND TRIAL POOL SET FOR 7/25/2005.SIGNED BY JUDGE ANITA B. BRODY ON 11/9/2004. 11/12/2004 ENTERED AND COPIES VIA ECF AND U.S. MAIL.(mo, ) Modified on 11/18/2004 (mo, ). (Entered: 11/12/2004)
16 First MOTION to Dismiss filed by CREATIVE PLAYTHINGS, LTD..Memorandum, Certificate of Service, Order. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit D# 4 Exhibit Exhibit C# 5 Exhibit Exhibit E)(EDWARDS, DAVID) (Entered: 11/17/2004)
17 RESPONSE in Opposition re 16 First MOTION to Dismiss filed by GERALD FLANAGAN. (DUDASH, ROBERT) (Entered: 12/01/2004)
18 Memorandum in Opposition re 16 First MOTION to Dismiss filed by GERALD FLANAGAN. (DUDASH, ROBERT) (Entered: 12/01/2004)
19 Proposed Order RE: RESPONSE in Opposition re 16 First MOTION to Dismissfiled by GERALD FLANAGAN. (DUDASH, ROBERT) Modified on 12/3/2004 (np). (Entered: 12/01/2004)
20 Certificate of Service RE: RESPONSE in Opposition re 16 First MOTION to Dismiss filed by GERALD FLANAGAN. (DUDASH, ROBERT) Modified on 12/3/2004 (np). (Entered: 12/01/2004)
21 ORDER that DISCOVERY DUE BY 5/26/2005, DISPOSITIVE MOTIONS DUE JUNE 23, 2005, MOTIONS IN LIMINE DUE BY 7/21/2005, PLAINTIFF PRETRIAL MEMO DUE BY 7/7/2005, DEFENDANT PRETRIAL MEMO DUE BY 7/7/2005 AND TRIAL POOL SET FOR 7/25/2005.SIGNED BY JUDGE ANITA B. BRODY ON 12/02/2004. 12/06/2004 ENTERED AND COPIES VIA ECF AND U.S. MAIL.(mo, ) Modified on 12/7/2004 (mo, ). (Entered: 12/06/2004)
22 REPLY to Response to Motion re 16 First MOTION to Dismiss filed by CREATIVE PLAYTHINGS, LTD.. (EDWARDS, DAVID) (FILED IN ERROR BY ATTORNEY; ATTORNEY WILL RE-FILE CORRECTED DOCUMENT) Modified on 12/10/2004 (np). (Entered: 12/10/2004)

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12/10/2004 03/30/2005
05/19/2005 06/06/2005 06/16/2005 06/21/2005
06/22/2005 07/07/2005

23 REPLY to Response to Motion re 16 First MOTION to Dismiss filed by CREATIVE PLAYTHINGS, LTD., Certificate of Service. (EDWARDS, DAVID) Modified on 12/10/2004 (np). (Entered: 12/10/2004)
24 SCHEDULING ORDER THAT ALL DISCOVERY DUE BY 6/27/2005. PLAINTIFF'S EXPERT REPORT DUE MAY 26, 2005; DEFENDANT'S REPORT DUE 6/13/05; DEPOSITIONS OF ALL EXPERTS TO BE COMPLETED BY 6/22/05; DISPOSITIVE MOTIONS DUE 6/22/05; EXCHANGE OF EXHIBITS DUE 8/8/05; ALL MOTIONS IN LIMINE DUE BY 8/22/2005. PLAINTIFF PRETRIAL MEMO DUE BY 8/8/2005. DEFENDANT PRETRIAL MEMO DUE BY 8/8/2005. TRIAL POOL SET FOR 8/29/2005.. SIGNED BY JUDGE ANITA B. BRODY ON 3/29/05. 3/30/05 ENTERED AND COPIES MAILED AND E-MAILED (ldb, ) (Entered: 03/30/2005)
25 NOTICE of Appearance by RODNEY E. GOULD on behalf of CREATIVE PLAYTHINGS, LTD., CREATIVE PLAYTHINGS, LTD. (GOULD, RODNEY) (Entered: 05/19/2005)
26 STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT BETWEEN PLAINTIFF EEOC AND DEFENDANT CREATIVE PLAYTHINGS. SIGNED BY JUDGE ANITA B. BRODY ON 6/6/05. 6/6/05 ENTERED AND COPIES MAILED. (jpd) (Entered: 06/06/2005)
27 MOTION for Leave to Appear Pro Hac Vice filed by CREATIVE PLAYTHINGS, LTD..Motion, Memorandum, Declaration of David Edwards, Declaration of Robert Mueller, Certificate of Service.(EDWARDS, DAVID) (Entered: 06/16/2005)
28 MEMORANDUM AND ORDER - UPON CONSIDERATION OF CREATIVE PLAYTHINGS'S MOTION TO DISMISS, FLANAGN'S RESPONSE, AND CREATIVE PLAYTHINGS'S REPLY, IT IS ORDERED THAT THE MOTION TO DISMISS (DOCKET #16) IS GRANTED IN PART AND DENIED IN PART. - IT IS GRANTED AS TO THE PORTION OF THE FIFTH COUNT OF FLANAGAN'S INTERVENOR COMPLAINT ALLEGING INFLICTION OF EMOTIONAL DISTRESS ARISING OUT OF FLANGAN'S EMPLOYMENT RELATIONSHIP WITH CREATIVE PLAYTHINGS. - IT IS DENIED AS TO THE PORTION OF THE FIFTH COUNT OF FLANAGAN'S INTERVENOR COMPLAINT ALLEGING INFLICTION OF EMOTIONAL DISTRESS OCCURRING AFTER FLANAGAN'S EMPLOYMENT WAS TERMINATED. - IT IS FURTHER DENIED AS TO THE THIRD, FOURTH, SIXTH, AND SEVENTH COUNTS OF FLANAGAN'S INTERVENOR COMPLAINT. SIGNED BY JUDGE ANITA B. BRODY ON 06/21/2005.06/21/2005 ENTERED AND COPIES VIA ECF AND U.S. MAIL. (mo, ) (Entered: 06/21/2005)
29 DEFENDANT CREATIVE PLAYTHINGS, LTD.'S MOTION FOR SUMMARY JUDGMENT, MEMORANDUM, CERTIFICATE OF SERVICE. (jpd) Additional attachment(s) added on 6/28/2005 (jpd, ). (Entered: 06/22/2005)
30 RESPONSE in Opposition re 29 MOTION for Summary Judgment filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (ANGLADE, WOODY) (Entered: 07/07/2005)

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07/07/2005 07/07/2005 07/20/2005 08/19/2005 08/24/2005 08/24/2005 09/13/2005
09/13/2005

31 Declaration of Woody Anglade, Esq. In Support of Plff EEOC's Memo in Opposition to Deft's Motion for Summary Judgment by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (jmp, ) (Entered: 07/08/2005)
32 MEMORANDUM of Fact and Law of Plff. In RESPONSE and OBJECTION to Deft's MOTION for Summary Judgment filed by GERALD FLANAGAN.Declaration, Certificate of Service. (pr, ) Additional attachment(s) added on 8/24/2005 (jpd, ). (Entered: 07/08/2005)
33 Minute Entry for proceedings held before Judge DIANE M. WELSH : Settlement Conference held on 7/19/05. (le, ) (Entered: 07/20/2005)
34 ORDER that A STATUS CONFERENCE IS SET FOR 8/26/2005 AT 09:30 AM IN JUDGE'S CHAMBERS, ROOM 7613 ON THE 7TH FLOOR, BEFORE HONORABLE ANITA B. BRODY.. SIGNED BY JUDGE ANITA B. BRODY ON 08/19/2005. 08/19/2005 ENTERED AND COPIES VIA ECF AND U.S. MAIL.(mo, ) (Entered: 08/19/2005)
35 ORDER THAT THE STATUS CONFERENCE SCHEDULED FOR 8/26/05 IS RESCHEDULED TO 9/21/2005 AT 4:30 P.M. . SIGNED BY JUDGE ANITA B. BRODY ON 08/24/05. 08/24/05 ENTERED AND COPIES MAILED, E-MAILED (ldb, ) (Entered: 08/24/2005)
Set/Reset Hearings: STATUS CONFERENCE SET FOR 9/21/2005 04:30 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE ANITA B. BRODY. (ldb, ) (Entered: 08/24/2005)
36 Minute Entry for Telephone Conference held before Judge ANITA B. BRODY on 9/13/05: ESR: JAMES F.G. SCHEIDT : Counsel identify themselves for the record: Court inquires if Counsel agrees with Settlement: Counsel does agree with settlement as stated on the record: Court inquires Counsel as to the other plaintiffs who may be similarly situated as class members as stated on the record: Counsel respondes to the Courts inquiry and clarifies the circumstances as stated on the record: The Court shall sign the consent decree. (jpd) (Entered: 09/14/2005)
37 ORDER THAT THIS CONSENT DECREE SHALL FULLY AND FINALLY RESOLVE ALL CLAIMS WHICH WERE RAISED BY THE EEOC IN ITS COMPLAINT IN CIVIL ACTION NO. 04-CV-3243. THE CLERK OF COURT IS HEREBY DIRECTED TO SEND A FILE STAMPED COPY OF THE CONSENT DECREE TO COUNSEL OF RECORD. SIGNED BY JUDGE ANITA B. BRODY ON 9/13/05. 9/14/05 ENTERED AND COPIES MAILED.(jpd) (Entered: 09/14/2005)

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