IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KRISTEN M. LEONARD : CIVIL ACTION

:

v. :

:

MONTGOMERY INSURANCE SERVICES, :

INC. : NO. 02-4156

MEMORADUM ORDER

This case arises from defendant's alleged

discrimination based on plaintiff's gender. Plaintiff has

asserted claims for violations of Title VII and for retaliation. 

Presently before the court is defendant Montgomery Insurance's

Partial Motion to Dismiss Count I with prejudice as to any claims

predicated on events prior to September 10, 1999, Dismiss Count

II for a failure to exhaust administrative remedies, and to

strike plaintiff's punitive damages claim pursuant to F.R.C.P.

12(b)(6).

 A motion to dismiss under Rule 12(b)(6) tests the

legal sufficiency of a claim while accepting the veracity of the

claimant's allegations. See Markowitz v. Northeast Land Co., 906

F.2d 100, 103 (3d Cir. 1990); Sturm v. Clark, 835 F.2d 1009, 1011

(3d Cir. 1987); Winterberg v. CNA Ins. Co., 868 F. Supp. 713, 718

(E.D. Pa. 1994), aff'd, 72 F.3d 318 (3d Cir. 1995). In

addressing such a motion, a court may also consider matters of

public record, including documents memorializing decisions of

governmental agencies, and documents referenced in the complaint

or essential to a plaintiff's claim which are attached to a

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defendant's motion. See Churchill v. Star Enter., 183 F.3d 184,

190 n.5 (3d Cir. 1999); Beverly Enter., Inc. v. Trump, 182 F.3d

183, 190 n.3 (3d Cir. 1999), cert. denied, 120 S. Ct. 795 (2000);

In re Burlington Coat Factory Sec. Lit., 114 F.3d 1410, 1426 (3d

Cir. 1997); Arizmendi v. Lawson, 914 F. Supp. 1157, 1160-61 (E.D.

Pa. 1996). Employing this standard, the pertinent facts for

purposes of this motion are as follow.

Defendant is a Pennsylvania corporation doing business

in Media, Pennsylvania. Jurisdiction is based on 42 U.S.C. §

2000(e) et seq.

A. Summary of Plaintiff’s Allegations

Plaintiff began working for the defendant as a personal

line producer on August 17, 1998. Plaintiff was the only female

producer and she was treated differently than other producers. 

Defendant discouraged her from taking on commercial accounts. 

She also received lower percentage commissions of 25% while the

other line producer, Jay Ashworth, received commissions of 40%. 

Defendant also did not provide plaintiff with a car

allowance for much of her first year of employment while Mr.

Ashworth and Mike Detta, a life line producer, received their

automobile allowances of $350 at the start of their employment. 

Moreover, once defendant did offer plaintiff an automobile

allowance, it initially offered her only $150. Ultimately,

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defendant did provide her with a $350 allowance, but deducted

$262 from her salary. 

Moreover, when plaintiff began working with the

defendant, her office did not contain any chairs to seat clients. 

Meanwhile, defendant provided Mr. Ashworth with a fully furnished

office upon starting. This prompted plaintiff's realization that

defendant treated Mr. Ashworth better than it treated her. As a

result, she spoke to Don Hosier, the supervisor of the commercial

lines, about how she believed defendant treated her differently

than Mr. Ashworth because of her sex.

In July 1999, Mr. Hosier provided plaintiff with a lead

about a potential client that Mr. Ashworth had failed to contact

for over two weeks. Plaintiff immediately contacted the customer

and promised an insurance quote within two days. Steve

Montgomery, plaintiff's immediate supervisor, then spoke with

this potential client and criticized plaintiff about failing to

meet company guidelines requiring that clients be provided with a

price quote within two days. When plaintiff attempted to explain

to Mr. Montgomery that the lead had originally been assigned to

Mr. Ashworth and that she had only been given the client's name

two days ago and was therefore in compliance with defendant's

rule, he refused to listen. Defendant did not discipline or

confront Mr. Ashworth for his failure to follow defendant's

policy.

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As a result of this incident, plaintiff told Mr.

Montgomery that she believed that defendant treated her

differently than Mr. Ashworth. 

In August 1999, plaintiff had scheduled a vacation. 

Before departing, Mr. Hosier demanded that both plaintiff and Mr.

Ashworth compile a list or prospective clients and their current

status. Plaintiff had 42 clents listed, all of whom had been

called back and provided with quotes, whereas Mr. Ashworth had 38

accounts listed, but 18 still required quotations. 

On September 13, 1999, defendant fired plaintiff

without providing an explanation. Plaintiff filed a complaint

with the EEOC on July 7, 2000. She received a right to sue

letter from the EEOC on April 2, 2002, and subsequently filed

this suit.

B. Analysis

Defendant first moves to limit plaintiff's claims for

sex discrimination to events that occurred on or after September

10, 1999, because they contend that earlier events are time

barred. Plaintiff contends that the alleged discriminatory

conduct occurred between August 17, 1998, through her termination

on September 13, 1999.

Under Title VII, an employee must file a charge

alleging discrimination with the Equal Employment Opportunity

Commission ("EEOC") within 180 days or with an equivalent state

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agency within 300 days of the allegedly discriminatory action. 

42 U.S.C. 2000e-5(e)(1); Communications Workers of Am. V. New

Jersey Dep't of Pers., 282 F.3d 213, 218 (3d Cir. 2002); Robinson

v. Dalton, 10 F.3d 1018, 1020-21 (3d Cir. 1997); Mroczek v.

Bethlehem Steel Corp., 126 F. Supp. 2d 379, 385-86 (E.D. Pa.

2001). Here, plaintiff filed her charge alleging sex

discrimination with the PHRA on July 7, 2000. Consequently, any

claim based on incidents of discrimination that occurred prior to

September 10, 1999, is time-barred unless the plaintiff can

establish a continuing violation. See Rush v. Scott Specialty

Gases, Inc., 113 F.3d 476, 481 (3d Cir. 1997).

To establish a continuing violation, the plaintiff must

allege a hostile work environment and show that the act occurring

within the limitations period was part of an ongoing practice or

pattern of discrimination. See id.; West v. Philadelphia Elec.

Co., 45 F.3d 744, 754 (3d Cir. 1995). The Supreme Court recently

addressed the continuing violation theory and limited its

application to claims such as hostile work environment where the

nature of the claim is ongoing discrimination and one example of

the discrimination does not prove the charge. National R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 2072

(2002). The Court held that Title VII "precludes recovery for

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1Discrete acts include each unlawful termination, denial of

transfer, failure or refusal to hire or other related acts that

discriminate against an individual with respect to her

compensation, terms, conditions, or privileges of employment

because of her sex. See National R.R. Passenger Corp., 122 S.

Ct. at 2070-73. 

6

discrete acts of discrimination or retaliation that occur outside

the statutory time period." Id. at 2073.1 These acts: 

are not actionable if time barred, even when they are

related to acts alleged in timely filed charges. Each

discrete act starts a new clock for filing charges

alleging that act. . . . The existence of past acts and

the employee's knowledge of their occurrence, however,

does not bar employees from filing charges about related

discrete acts so long as the acts are independently

discriminatory and charges addressing those acts are

themselves timely filed. Nor does the statute bar an

employee from using the prior acts as background evidence

in support of a timely claim. 

Id. at 2072. Accordingly, prior discrete discriminatory acts

occurring outside Title VII's limitations period are not

actionable. Id. at 2073. 

Here, plaintiff alleges that defendant discriminated

against her by paying her a lower commission rate than her male

coworkers, by not providing her with an automobile allowance

immediately after she started work while a male coworker received

it from the outset, and by not providing her an office with

client chairs when she first began working while her male

coworker's office had chairs. Each of these alleged acts cited

by plaintiff is discrete and cannot form the basis of a

continuing violations claim. See Bazemore v. Friday, 478 U.S.

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385, 395-96 (1986)(holding that "[e]ach week's paycheck that

delivers less to a black than to a similarly situated white is a

wrong actionable under Title VII."); Pollis v. New Sch. for

Social Research, 132 F.3d 115, 119 (2d Cir. 1997)(holding that

recurring pay discrimination does not constitute a continuing

violation because each receipt of a paycheck is the basis for a

separate cause of action for which suit must be brought within

the limitations period); Dasgupta v. Univ. of Wisconsin Bd. Of

Regents, 121 F.3d 1138, 1140 (7th Cir. 1997); Inglis v. Buena

Vista Univ., 235 F. Supp. 2d 1009, 1023-24 (N.D. Iowa

2002)(holding that receipt of allegedly discriminatory pay is a

discrete act of gender discrimination which occurs on a

particular day is not actionable if time barred). 

Further, plaintiff's complaint fails to show that the

plaintiff can prove any set of facts in support of a hostile work

environment claim that would entitle her to relief on a

continuing violations theory. A hostile work environment exists

when the workplace is permeated with discriminatory intimidation,

ridicule, and insult so severe and pervasive as to alter the

conditions of the victim's employment and create an abusive

working environment. See Harris v. Florlift Sys., Inc., 510 U.S.

17, 21 (1993). Incidents of harassment are pervasive if they

occur in concert or with regularity. See Andrews v. City of

Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990). All of

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plaintiff's claims concern disparate treatment as the factual

portion of her complaint only lists instances of differential

treatment in relation to another employee. Accordingly, the

continuing violations theory is not applicable in this case and

plaintiff's claims must be limited to acts that occurred on or

after September 10, 1999. The Court does not now rule whether

plaintiff may be able to introduce some facts into evidence at

trial which took place prior to September 20, 1999.

Defendant also moves to have plaintiff's retaliation

claim dismissed because plaintiff did not include it in her

administrative charge and failed to exhaust her administrative

remedies. 

In a Title VII suit, a plaintiff must exhaust her

administrative remedies by first filing with the appropriate

agency. See Churchill v. Star Enter., 183 F.3d 184, 190 (3d Cir.

1999). The judicial complaint is then limited to the reasonable

scope of the complaint filed with the agency and the

investigation arising from the charge. See Antol, 82 F.3d at

1295; Fugarino v. Univ. Servs., 123 F. Supp. 2d 838, 841 (E.D.

Pa. 2000); Reddinger v. Hosp. Cent. Servs., Inc., 4 F. Supp. 2d

405, 409 (E.D. Pa. 1998). A judicial complaint is within the

scope of the administrative charge or its subsequent

investigation when there is a close connection between the facts

supporting each claim or where additional charges made in the

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judicial complaint could be considered explanations for the

original charge or stem from it. See Fakete v. Aetna Inc., 152

F. Supp. 2d 722, 732 (E.D. Pa. 2001). 

Here, although the plaintiff concedes she failed to

check the "retaliation" box on her on her administrative

complaint, the complaint does provide information that

constitutes notice of a retaliation claim. In her administrative

complaint, plaintiff wrote that she complained to defendant

several times that her office lacked chairs for her clients, but

that only after she stated that she believed defendant was

discriminating against her did she finally receive the chairs. 

These facts alleged in the administrative complaint when

considered in light of her subsequent termination show that a

retaliation claim is within the scope of the EEOC charge or the

investigation arising therefrom. See Mullen v. Toppers's Salon &

Healthcare Spa, Inc., 99 F. Supp. 2d 553, 556, 556 n.6 (E.D. Pa.

2000)(holding that although the plaintiff did not allege

retaliation in her administrative complaint, the retaliation

claim was within the scope of her administrative complaint

because it contained allegations that she had complained about

discrimination on numerous occasions); see also Ivory v. Radio

One, Inc., 2002 U.S. Dist. LEXIS 5672, *7-8 (E.D. Pa.

2002)(holding that a retaliation claim was within the scope of

the facts alleged in plaintiff's administrative complaint

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regarding complaints to management about an abusive work

environment). Accordingly, defendant's failure to exhaust

argument is rejected.

Finally, defendants contend that plaintiff failed to

state a claim that would entitle her to punitive damages because

the conduct described by plaintiff does not support the awarding

of punitive damages. Punitive damages are available under Title

VII when the employer acts with "malice or reckless indifference

to the [plaintiff's] federally protected rights." Kolstad v.

American Dental Ass'n, 527 U.S. 526, 529 (1999). Without the

benefits of discovery, the court finds it is premature to dismiss

the plaintiff's claim for punitive damages.

ACCORDINGLY, this day of April, 2003, upon

consideration of defendant Montgomery Insurance Services, Inc.'s

Partial Motion to Dismiss (Doc. #4) and plaintiff's response

thereto, consistent with the foregoing, IT IS HEREBY ORDERED that

said Motion is GRANTED in part; any claims predicated on

discriminatory conduct which occurred prior to September 10, 1999

are DISMISSED, and said Motion is otherwise DENIED.

BY THE COURT:

 

 

Michael M. Baylson, J.

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