1. Plaintiff's EEOC charge describes in greater detail that

"[Davis] used to touch my hips, and my upper body."

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GALE WEBB-BROWN : CIVIL ACTION

:

v. :

:

WACKENHUT CORPORATION :

et al. : NO. 05-4751

MEMORANDUM

Bartle, C.J. June 28, 2006

Before the court is the motion of defendants Wackenhut

Corporation and Daniel Levy to dismiss plaintiff's amended

complaint for failure to state a claim pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. 

In her amended complaint, pro se plaintiff Gale WebbBrown alleges that during the fall of 2003, while working for

Wackenhut Corporation ("Wackenhut"), a national security services

company, Wackenhut and several of its employees discriminated

against her. Plaintiff claims in her home-drawn complaint and

amended complaint that "Sgt. Davis" ("Davis"), a Wackenhut

employee, repeatedly called her and other employees "black

bitches," and that he touched her and other female employees

"inappropriately." Plaintiff states that Wackenhut conducted an 1

internal investigation of Davis and his supervisor, "Captain

Cannon" ("Cannon"), and fired them. Plaintiff further alleges

Case 2:05-cv-04751-HB Document 16 Filed 06/28/06 Page 1 of 7
2. We assume without deciding the accuracy of defendants' belief

that "Sgt. Levy" is Daniel Levy.

3. The other named employees include: "Sgt. Ludd," who plaintiff

says was present when Davis called her a bitch and who "spoke up

against the racism"; William O'Neil, a manager to whom plaintiff

complained about Davis; and Stanley Kolmetsky, a chief supervisor

who fired plaintiff under Journo's direction. 

-2-

that "Sgt. Levy" ("Levy"), her supervisor, changed her schedule 2

in retaliation for reporting Davis, and that Susan Journo

("Journo"), a project manager, fired plaintiff because she went

above Journo to complain about Davis. 

On June 18, 2004, plaintiff filed an employment

discrimination charge with the United States Equal Employment

Opportunity Commission ("EEOC") and the Pennsylvania Human

Relations Commission ("PHRC"). Upon receiving a letter from the

EEOC informing her of her right to sue, plaintiff instituted this

action. 

Service was effected on Levy and Wackenhut but "Sgt.

Davis" was unknown to Wackenhut. Because Journo and Cannon are

no longer employed by Wackenhut and their whereabouts were

unknown, they were not served. In her amended complaint,

plaintiff identifies several other Wackenhut employees and she

describes their involvement in the case, but she does not add

them as additional defendants. 

3

In evaluating a motion to dismiss we are required to

accept all well-pleaded allegations in the amended complaint as

true and to draw all reasonable inferences in favor of the

non-moving party. Hishon v. King & Spalding, 467 U.S. 69, 73

Case 2:05-cv-04751-HB Document 16 Filed 06/28/06 Page 2 of 7
-3-

(1984); Rocks v. Phila., 868 F.2d 644, 645 (3d Cir. 1989). A

claim should be dismissed only where "it appears beyond doubt

that plaintiff can prove no set of facts in support of [her]

claim which would entitle [her] to relief." In re Rockefeller

Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002). 

Because Webb-Brown is a pro se plaintiff, we construe her

pleadings liberally and "apply the applicable law, irrespective

of whether [she] has mentioned it by name." Dluhos v. Strasberg,

321 F.3d 365, 369 (3d Cir. 2003). 

As we understand plaintiff's allegations, she asserts

employment discrimination claims against Wackenhut Corporation

and against Davis, Levy, Journo, and Cannon as individuals. 

Liberally construed, plaintiff's allegations are most

appropriately considered as violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the

Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq. 

Although only defendants Wackenhut and Levy filed a motion to

dismiss, we have authority to dismiss any claim of a pro se

plaintiff proceeding in forma pauperis for failure to state a

claim on which relief may be granted. See 28 U.S.C.

§ 1915(e)(2).

Defendants first argue that plaintiff cannot state an

employment discrimination claim against the individual defendants

under Title VII. We agree. Our Court of Appeals and the "the

clear majority of the courts of appeals ... have held that

individual employees cannot be held liable under Title VII." 

Case 2:05-cv-04751-HB Document 16 Filed 06/28/06 Page 3 of 7
-4-

Sheridan v. E.I. duPont de Nemours & Co., 100 F.3d 1061, 1077 (3d

Cir. 1996). We therefore dismiss plaintiff's Title VII claims

against defendants Davis, Levy, Journo, and Cannon.

Next, defendants argue that plaintiff's claims pursuant

to the PHRA should be dismissed for failure to exhaust

administrative remedies. Before filing a court action for

employment discrimination under the PHRA, a complainant must file

a charge with the PHRC within one hundred eighty days of the

alleged violation. 43 Pa. Cons. Stat. Ann. § 959(h). "The

Pennsylvania courts have strictly interpreted this requirement." 

Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997). 

One hundred eighty days after the latest possible

alleged violation on November 13, 2003 would have been May 11,

2004. Plaintiff did not file her charge with the PHRC until

June 18, 2004. We do not know whether the PHRC responded to

plaintiff's charge, but regardless, the Pennsylvania Supreme

Court has said that "one who files a complaint with the

Commission that is later found to be untimely cannot be

considered to have used the administrative procedures provided in

the Act." Vincent v. Fuller Co., 616 A.2d 969, 974 (Pa. 1992). 

Therefore, we must dismiss plaintiff's claims under the PHRA

against all five defendants for failure to exhaust administrative

remedies.

Defendants also argue that plaintiff failed to exhaust

her administrative remedies under Title VII because "a race based

claim of discrimination could not reasonably be 'expected to grow

Case 2:05-cv-04751-HB Document 16 Filed 06/28/06 Page 4 of 7
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out of [Plaintiff’s] Original [EEOC] Charge.'" We find this

suggestion unpersuasive. As defendants themselves state,

plaintiff checked the box for discrimination based on race in her

EEOC charge. Plaintiff also indicated the race of each person in

parentheses after his or her name. This further alerted

defendants to the race-based nature of plaintiff's claims. 

Defendants argue that even if plaintiff exhausted her

administrative remedies, she states no cognizable claim under

Title VII. The Supreme Court, however, recently cautioned that

"the Federal Rules do not contain a heightened pleading standard

for employment discrimination suits" and that "an employment

discrimination plaintiff need not plead a prima facie case of

discrimination." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515

(2002). Rule 8 of the Federal Rules of Civil Procedure requires

only a short and plain statement of the claim. Plaintiff states

that Davis repeatedly called her and other female employees

"black bitches" and that he harassed her by touching her

"inappropriately." Plaintiff's amended complaint is sufficient

to allow her to proceed. 

 Finally, defendants argue that plaintiff's claims

should be dismissed because she failed to comply with this

court's deadline for filing her amended complaint. While

plaintiff, who is acting pro se, was three days late in filing

her amended complaint, we do not find it to be in the interest of

justice to grant the drastic relief sought by defendants.

Case 2:05-cv-04751-HB Document 16 Filed 06/28/06 Page 5 of 7
-6-

Accordingly, we will grant in part and deny in part the

motion of defendants to dismiss. We will dismiss plaintiff's

claims against Davis, Levy, Journo and Cannon as individuals, as

well as plaintiff's claims under the PHRA but will otherwise deny

the motion. 

Case 2:05-cv-04751-HB Document 16 Filed 06/28/06 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GALE WEBB-BROWN : CIVIL ACTION

:

v. :

:

WACKENHUT CORPORATION :

et al. : NO. 05-4751

ORDER

AND NOW, this 28th day of June, 2006, it is hereby

ORDERED that:

(1) the motion to dismiss plaintiff's amended

complaint as to defendants Sgt. Davis, Sgt. Daniel Levy, Susan

Journo, and Capt. Cannon is GRANTED; 

(2) the motion to dismiss plaintiff's claims under the

Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., is

GRANTED; and

(3) the motion of defendants to dismiss is otherwise

DENIED.

BY THE COURT:

/s/ Harvey Bartle III 

C.J.

Case 2:05-cv-04751-HB Document 16 Filed 06/28/06 Page 7 of 7