William L. McLaughlin, Jr., Esq. Attorney for Plaintiff

Attorney I.D. No. 48307

William L. McLaughlin Law Offices

23 South Valley Road

P.O. Box 494

Paoli, PA 19301

(610)644-4545

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

___________________________________

KRISTEN M. LEONARD : CIVIL ACTION

Plaintiff, :

: No. 02-CV-4156 

v. :

:

MONTGOMERY INSURANCE SERVICES, INC.:

Defendant. :

___________________________________

MEMORANDUM OF LAW OF PLAINTIFF, KRISTEN M. LEONARD 

IN OPPOSITION TO DEFENDANT MONTGOMERY INSURANCE

SERVICES, INC.'S PARTIAL MOTION TO DISMISS COMPLAINT 

PURSUANT TO FED.R.CIV.P.12(b)(6) 

I. REVIEW OF COMPLAINT

For the purposes of the motion to dismiss, the only facts 

necessary to consider in deciding a 12(b)(6) motion to dismiss 

are contained in the complaint and in the Exhibits to the 

defendant's memorandum of law in support of the motion.

For the purposes of replying to the motion, it is admitted that 

the filing date of the Administrative Charge is on or about July 

7, 2000 as indicated in the date stamp from the EEOC. (The rather 

unhelpful stamp might be pointing to July 6, but for this motion 

it makes no difference.) The later date stamp on the EEOC 

"Charge of Discrimination" was the result of the EEOC not having 

their own form verified. The verification was executed on 

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February 2, 2002, before the right to sue letter was issued. The 

PHRC complaint form was verified and filed with the EEOC in July 

of 2000. The complaint form was also filed with the PHRC, even 

though it was clear that the limitation period for the state 

claims had long since passed. The PHRC returned the complaint 

filed with them without assigning a number. 

For the reasons stated below, the defendant's entire motion 

should be denied.

II. ARGUMENT

A. Legal Standard

The defendant cites many cases except the ones that matter 

the most. The Supreme Court has made it abundantly clear that it 

is improper to dismiss a case because the factual allegations in 

the complaint fail to make out some element of the claim. 

Fact pleading is not a requirement of Fed.R.Civ.P.8. Conley 

v. Gibson, 355 U.S. 41, 2 L.Ed.2d 80, 78 S.Ct. 99 (1957)(The 

rules do not require a claimant to set out in detail the facts 

upon which he bases his claim.) This requirement does not change 

regardless of the type of claim raised. Charlene Leatherman v. 

Tarrant County Narcotics Intelligence and Coordination Unit, et 

al., 507 U.S. 163, 122 L.Ed.2d 517, 113 S.Ct. 1160 (1993) (No 

heightened pleading requirement in civil rights cases.) In the 

employment discrimination law context, Swierkiewicz v. Sorema 

N.A., 534 U.S. 506, 122 S.Ct. 992, 995 (2002) held that Rule 8 

"notice pleading" was sufficient to put the defendant on notice 

and that the facts to establish the prima facie case are to be 

shown in discovery. The Court held:

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"This case presents the question whether a complaint in 

an employment discrimination lawsuit must contain 

specific facts establishing a prima facie case of 

discrimination under the framework set forth by this 

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 972, 

36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). We hold that an 

employment discrimination complaint need not include 

such facts and instead must contain only 'a short and 

plain statement of the claim showing that the pleader is 

entitled to relief.' Fed.R.Civ.P.8(a)(2).")

Ms. Leonard has done just that. There is a short 

and plain statement in her complaint that she is seeking 

relief for discrimination. In the fact portion of the 

complaint, she outlines some events that set forth 

circumstances that inform the defendant of the nature of 

the claim. Nowhere does the fact statement infer or 

imply that these are all the facts, or all the theories 

that will be relied upon to make out the claim of 

discrimination. The facts stated merely put the 

defendant on notice of some circumstances concerning the 

claim, which is all that is required under Rule 8. 

Apparently, notice was adequate since the defendant is 

now motioning to dismiss based on law that depends on 

knowing the possible claims that might be raised in 

litigation.

The motion to dismiss relies on National Railroad Passenger 

Corporation v. Morgan, 122 S.Ct. 2061 (2002), a recent Supreme 

Court ruling that limits the so called continuing violation 

theory to cases involving a "hostile work environment". The 

defendant presumes to know exactly what will be disclosed in 

discovery when they conclude that National Railroad controls 

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because Leonard is only complaining about discrete incidents. 

How do they know what will be disclosed in discovery? This case 

was precluded by an EEOC filing that did not result in an actual 

investigation. Therefore, what they know about this case is in 

the administrative complaint and the federal complaint. Neither 

complaint is comprehensive, nor are they required to be. 

Therefore, it is impossible to motion to dismiss anything before 

adequate discovery. 

B. Any claims of plaintiff predicated upon alleged 

discriminatory conduct which took place prior to September 10, 

1999 cannot be dismissed until such time as the Court can 

determine if a hostile work environment existed thereby allowing 

the plaintiff to recover damages for employer actions that 

predated September 10, 1999 under a continuing violation theory.

The defendant predictably has decided from the face of the 

complaint that it can be conclusively found that all the 

described occurrences, are "discrete" events and not part of an 

ongoing "hostile work environment". Of course, this is 

impossible with the case in its current posture. Reading the 

complaint, it is clearly possible that additional facts will 

emerge during discovery that would allow a reasonable fact-finder 

to conclude that Ms. Leonard was subject to a hostile work 

environment by considering the factors mentioned in National 

Railroad. She could show that "...the workplace [is] permeated 

with 'discriminatory intimidation, ridicule, and insult,' that is 

'sufficiently severe or pervasive to alter the conditions of ... 

employment and create an abusive working environment.'" Harris 

v. Forklift Systems, Inc., 510 U.S. 17,21, 126 L.Ed.2d 295, 114 

S.Ct. 367 (1993). If this finding holds up, then the entire 

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argument that the plaintiff cannot seek damages for acts 

occurring before the 300 day lookback is incorrect as a matter of 

law. If, on the other hand, in a motion for summary judgment, 

for example, the Court finds that there is no such hostile work 

environment claim, then damages for the prior acts would properly 

be eliminated from the plaintiff's case. This would not be 

equivalent to a motion in limine, however, since the National 

Railroad majority has explained that such prior acts can be used 

as "background" to the discrete act that forms the basis of the 

discrimination charge. National Railroad at S.Ct. 2072 ("Nor 

does the statute bar an employee from using the prior acts as 

background evidence in support of a timely claim.") In this 

case, Ms. Leonard was discharged on September 13, 1999 which is 

within the 300 day limit. How that event relates to damages and 

evidence is not something that should or needs to be decided in a 

motion to dismiss, and respectfully the defendant's motion should 

be denied.

C. Plaintiff has not failed to exhaust her administrative 

remedies with regard to her retaliation claim.

The key fact that distinguishes this case from much of the 

analysis that the defendant offers to support the proposition 

that the retaliation claim was not raised or exhausted is that 

there was no investigation conducted by the respective 

administrative agency. For example, the defendant cites Watson 

v. SEPTA, 1997 U.S. Dist. LEXIS 13306 (E.D. Pa. August 28, 1997) 

for the proposition that not mentioning the words "retaliation" 

in the complaint forecloses judicial remedy. (Defendant's 

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Memorandum at Page 7) Putting aside for the moment that facts in 

that case can be distinguished from Ms. Leonard's case, the Court 

in Watson states that the claims of retaliation are no more 

"arising out of the EEOC investigation" than those rejected in 

Antol v. Perry, 82 F.3d 1291, 1295 (3d Dir. 1966). The Antol

case had an investigation, and the discussion in that case made 

it clear that not only was there no mention of gender 

discrimination, but that the actual investigation did not raise 

the issue either. Therefore, the issue was not part of the 

administrative process and thus not permitted to go forward in 

federal court.

However, it is very common that an EEOC complaint never 

results in an actual investigation, and the courts have adopted a 

rule to cover this circumstance. As recently explained and 

summarized by Judge Van Antwerpin in Zysk v. FFE Minerals USA 

Inc., 2001 U.S.Dist. LEXIS 20914:

"In its seminal opinion dealing with the proper scope of 

complaints arising from inadequate EEOC charges, the 

Fifth Circuit permitted a plaintiff to proceed with her 

complaint based on national origin discrimination 

despite the fact that her EEOC charge only alleged sexbased discrimination. Sanchez v. Standard Brands, Inc., 

431 F.2d 455 (5th Cir. 1970). The Court observed, 

"Mindful of the remedial and humanitarian underpinnings 

of Title VII and of the crucial role played by the 

private litigant in the statutory scheme, courts 

construing Title VII have been extremely reluctant to 

allow procedural technicalities to bar claims brought 

under the Act charges." Id. at 460-461. Consistent with 

this thinking, the Sanchez court held that "the civil 

action is much more intimately related to the EEOC 

investigation than to the words of the charge which 

originally triggered the investigation." Id. at 466. "In 

other words," the Fifth Circuit explained, "the 'scope' 

of the judicial complaint is limited to the 'scope' of 

the EEOC investigation which can reasonably be expected 

to grow out of the charge of discrimination." Id. Thus, 

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the court permitted Sanchez to proceed on a previously 

unstated basis of discrimination because it found that 

the facts alleged in their EEOC charge might have led 

the agency to discover during the course of its 

investigation the type of discrimination she 

subsequently alleged in their complaint. Id." (emphasis 

added)

With this concept closely in mind, it is easy to 

distinguish between holdings that deal with actual 

investigations and what subjects they covered compared 

with those cases that had no substantive investigation 

and one must project on where an investigation could go. 

Furthermore, such projection is not limited by the "... 

often inartful allegations contained in the factual 

statement of the EEOC charge." Bernstein v. National 

Liberty International Corp., 407 F.Supp. 709, 713 (E.D. 

Pa. 1976); Black Grievance Committee v. Philadelphia 

Elec. Co., 79 F.R.D. 98, 114 (E.D. Pa. 1978). The 

administrative exhaustion requirement is tempered by a 

fairly liberal construction given to EEOC charges. 

Polay v. West Co., 629 F.Supp. 899, 901 (E.D. Pa. 1986). 

The failure to check a particular box on an EEOC charge 

is not necessarily indicative of a failure to exhaust 

the mandatory administrative remedies. Doe v. Kohn Nast 

& Graf, P.C., 866 F.Supp. 190, 196 (E.D. Pa. 1994)("'We 

decline to hold that the failure to place a check mark 

in the correct box is a fatal error. In the context of 

Title VII, no one ... should be boxed out.'")(quoting 

Sanchez, Supra.); Schouten v. CSX Transportation, Inc., 

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58 F.Supp. 2d 614 (E.D. Pa. 1999, Reed, J.)(Checking box 

for retaliation not dispositive to determine exhaustion)

In this case, the retaliation block was not marked 

but the following statements were made:

* "I complained about this problem many times and 

only after I said I felt like I was being discriminated 

against were chairs produced."

* "I was fired..." (Defendant's Memorandum at Exhibit 

B)

This is sufficient to lead an investigation down 

the path of retaliation. The fact pattern is very 

similar to Mullen v. Toppers's Salon and Health Spa, 

Inc., 99 F.Supp. 2d 553, 83 Fair Empl. Prac. Cas. (BNA) 

456. In that case, the defendant moved to dismiss the 

retaliation claims because they were not included in 

plaintiff's EEOC charge. Judge Ludwig found that:

"[T]he charge states: 'Ms. Smith [defendant's Personnel 

Director] ... referred me to Karen Loreman, Spa 

Director. I spoke to Ms. Loreman on April 30, 1998 and 

at that time, she informed me that my employment was 

terminated.' Def.'s motion at ex. B. Here again, 

plaintiff did not mark the box labeled 'retaliation' as 

the cause of discrimination she alleged to have 

suffered. However, it is not necessary for a complaint 

to mirror an EEOC charge; it must only be 'within the 

scope' of the charge. That the 'retaliation' box was 

not checked does not itself preclude plaintiff's claim. 

The facts stated in the charge are ample and specific 

enough to put the EEOC and defendant on notice that 

plaintiff claimed to have been retaliated against for 

complaining about the harassment. The failure to 

exhaust argument is therefore rejected."

It is respectfully suggested that this Court follow the well 

reasoned path taken by the Mullen Court where the fact pattern is 

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so close (the only difference being that Ms. Leonard actually 

mentions discrimination and Ms. Mullen apparently did not) and 

reject following the Watson case cited by the defendant. In that 

case, Judge Shapiro noted that the charge in that case stated "On 

September 19, 1994, because I experienced pain in performing the 

newly assigned job, I complained. After having complained, I 

wasforced [sic] to take a drug test." Clearly, there was no 

mention of a complaint about discrimination in the Watson charges 

as there was in Ms. Leonard's charges. Applying the Sanchez

principles, the scope of a potential investigation would have 

explored the possible connection between complaining about 

discriminatory conduct and a subsequent firing. 

D. Fed.R.Civ.P.8 does not require plaintiff to allege 

facts to support a Title VII claim for punitive damages.

For the very same argument as made above in section A. and 

B., the defendant's motion to dismiss a claim for punitive damage 

must fail. The defendant states "There are no allegations in 

this case that rise to the level of intentional discrimination 

required for punitive damages ...". (Defendant's Memorandum of 

Law at p. 8) There is not one citation to support the idea that 

there needs to be a specific factual allegation to support 

punitive damages in order to withstand a motion to dismiss a 

punitive damages claim, for obvious reasons. Only in instances 

where, as a matter of law, punitive damages were not available 

under a statute, have such claims been dismissed. The defendant 

is basically reiterating the specious presumption that Rule 8 

requires the pleading of specific facts or elements of any claim 

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that is noticed by the complaint. The standards for punitive 

damages in Kolstad v. American Dental Association, 527 U.S. 526, 

530 (1999) are identical to the element of a prima facie case in 

McDonnell Douglas in this respect. Therefore, the holding in 

Swierkiewicz v. Sorema N.A., supra. controls, and respectfully, 

the Court must deny the defendant's motion on this point. 

III. CONCLUSION

For the foregoing reasons, Plaintiff Kristen M. Leonard 

respectfully requests this Honorable Court to deny Defendant's 

Motion to Dismiss Count I of plaintiff's Complaint as to any 

claims predicated upon alleged discriminatory conduct which took 

place prior to September 10, 1999 as premature, and not subject 

to dismissal for failure to state sufficient facts, the defendant 

being clearly on notice of the claims against them; to deny 

dismissal of Count II of plaintiff's Complaint because the record 

does not support a finding that the reasonable scope of an 

investigation into the plaintiff's complaint would not have 

explored evidence of retaliatory conduct by the employer; and 

to deny dismissal of plaintiff's request for punitive damages 

since the imposition of punitive damages under Title VII depends 

on facts that may be disclosed or uncovered during discovery or 

trial.

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By:_______________________________

 William L. McLaughlin, Jr.

Date: _______________

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