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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EZEKIEL V. WILSON, : Civil Action No. 4:14-cv-1409

:

:

Plaintiff, : (Judge Brann)

:

v. :

:

CONCERN PROFESSIONAL :

SERVICES, :

:

Defendant. :

MEMORANDUM

May 6, 2015

On July 22, 2014, Plaintiff Ezekiel V. Wilson initiated the above-captioned 

civil action by filing a complaint with this Court, alleging violations of Title VII of 

the 1964 Civil Rights Act and requesting that this Court award remedies which 

could not have been awarded in his prior proceedings before the Pennsylvania 

tribunals. On August 26, 2014, Defendant filed a motion to dismiss Plaintiff’s 

complaint for failure to state a claim upon which relief can be granted pursuant to 

Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff’s claim is barred by 

res judicata, or claim preclusion. Though Defendant did not file a reply brief, the 

time for briefing has passed, and consequently this matter is ripe for disposition. 

Based on the following reasoning, Defendant’s motion to dismiss Plaintiff’s 

complaint is denied.

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I. BACKGROUND

Plaintiff Ezekiel Wilson, an African American, was employed by Defendant 

Concern Professional Services as a supplemental counselor from May 10, 2000 

until his termination of employment on May 3, 2002. Pl.’s Compl., July 22, 2014, 

ECF No. 1 ¶ 4, 10, 11 (hereinafter “Pl.’s Compl.”). On or about July 23, 2002, 

Plaintiff filed a complaint of racial discrimination with the Pennsylvania Human 

Relations Commission (hereinafter the “PHRC”), which complaint was crossshared with the Equal Employment Opportunity Commission (hereinafter the 

“EEOC”). Id. at ¶ 7, 8. The EEOC issued to Plaintiff a written notice of right to sue 

on April 24, 2014. Id. at ¶ 9.

After filing his complaint with the PHRC, Plaintiff’s claim was litigated for 

approximately ten years, and the PHRC ultimately determined that Plaintiff had 

been terminated as a result of unlawful discrimination. Id. at ¶ 12. Despite that 

determination and accompanying award, Plaintiff has now filed a Title VII claim in 

this Court, seeking remedies for his unlawful termination that were unavailable to 

or not granted to him in the previous litigation before the PHRC. Id. at ¶ 14.

II. LEGAL STANDARD

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), a court must view all allegations stated in the complaint as true 

and construe all inferences in the light most favorable to plaintiff. Hishon v. King

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& Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d 

Cir. 1993). However, “the tenet that a court must accept as true all of the [factual] 

allegations contained in the complaint is inapplicable to legal conclusions.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). In ruling 

on such a motion, the court primarily considers the allegations of the pleading, but 

is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d 

at 183. “Threadbare recitals of the elements of a cause of action, supported by 

mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. At the 

motion to dismiss stage, the court considers whether plaintiff is entitled to offer 

evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 

472, 482 (3d Cir. 2000). 

A complaint should only be dismissed if, accepting as true all of the 

allegations in the amended complaint, plaintiff has not pled enough facts to state a 

claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 561 (2007). “Determining whether a complaint states a plausible claim 

for relief will . . . be a context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-664. 

“In considering a Rule 12(b)(6) motion, we must be mindful that federal 

courts require notice pleading, as opposed to the heightened standard of fact 

pleading.” Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa. 

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May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 "requires only a 

‘short and plain statement of the claim showing that the pleader is entitled to relief,' 

in order to 'give the defendant fair notice of what the...claim is and the grounds on 

which it rests,'" Twombly, 550 U.S. at 554 (quoting Conley v. Gibson, 355 U.S. 41, 

47 (1957)). However, even under this lower notice pleading standard, a plaintiff 

must do more than recite the elements of a cause of action, and then make a 

blanket assertion of an entitlement to relief. See Hellmann, 2008 WL 1969311 at 

*3. Instead, a plaintiff must make a factual showing of his entitlement to relief by 

alleging sufficient facts that, when taken as true, suggest the required elements of a 

particular legal theory. See Twombly, 550 U.S. at 561. “[W]here the well-pleaded 

facts do not permit the court to infer more than the mere possibility of misconduct, 

the complaint has alleged - - but it has not “shown” - - “that the pleader is entitled 

to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)). 

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation 

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490 

U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where 

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the 

non-moving party can prove no set of facts in support of its allegations, then a 

claim must be dismissed “without regard to whether it is based on an outlandish 

legal theory or on a close but ultimately unavailing one.” Id. at 327.

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III. DISCUSSION

In support of its motion to dismiss, Defendant argues only one issue – that 

res judicata, or claim preclusion, bars any litigation of Plaintiff’s claim in this 

Court because he has previously litigated what was essentially the same claim 

before the PHRC and the Commonwealth Court of Pennsylvania. Plaintiff 

responds that his successful litigation before the PHRC on his unlawful 

discrimination claim does not operate to preclude the subsequent initiation of a 

Title VII claim based on the same facts in federal court because the PHRC does not 

have subject matter jurisdiction to adjudicate a Title VII claim.

Claim preclusion is a doctrine which prevents a party from prevailing on 

issues that he might have, but did not, assert in a previous action. See Riverside 

Memorial Mausoleum, Inc. v. UMET Trust, 581 F.2d 62, 67 (3d Cir. 1978). 

Essentially, “[c]laim preclusion gives dispositive effect to a prior judgment if a 

particular issue, although not litigated, could have been raised in the earlier 

proceeding.” Churchill v. Star Enterprises, 183 F.3d 184, 194 (3d Cir. 1999); see 

also Migra v. Warren City School District Board of Education, 465 U.S. 75, 77 n.1 

(1984) (“Claim preclusion refers to the effect of a judgment in foreclosing 

litigation of a matter that never has been litigated, because of a determination that 

it should have been advanced in an earlier suit.”). A determination of the 

preclusive impact of a judgment of a state court or tribunal depends upon the law 

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of the adjudicating state. See Marrese v. American Academy of Orthopaedic 

Surgeons, 470 U.S. 373, 380 (1985) (“It has long been established that [the full 

faith and credit statute] does not allow federal courts to employ their own rules of 

res judicata in determining the effect of state judgments. Rather, it goes beyond 

the common law and commands a federal court to accept the rules chosen by the 

State from which the judgment is taken.” (citations omitted)).

In Pennsylvania, claim preclusion applies to bar a subsequent suit when four 

factors have been met: “The two actions must share an identity of the (1) thing 

sued on; (2) cause of action; (3) persons and parties to the action; and (4) quality or 

capacity of the parties suing or sued.” McNasby v. Crown Cork and Seal Co., Inc., 

888 F.2d 270, 276 (3d Cir. 1989) (quoting Gregory v. Chehi, 843 F.2d 111, 116 

(3d Cir. 1988)). “However, . . . Pennsylvania does not bar the litigation of omitted 

claims that otherwise meet these four criteria, if those claims could not have been 

adjudicated by the initial court because that court would not have had subject

matter jurisdiction over them.” Id. (citing McCarter v. Mitcham, 883 F.2d 196, 199 

(3d Cir. 1989)); See also Marrese, 470 U.S. at 382 (“[C]laim preclusion generally 

does not apply where the plaintiff was unable to rely on a certain theory of the case 

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because of the limitations on the subject matter jurisdiction of the courts.” 

(citations omitted)).

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Because the PHRC has no subject matter jurisdiction to adjudicate a claim 

under Title VII, Plaintiff is not now precluded from bringing this claim in federal 

court. In a case with an almost identical factual and procedural background, 

McNasby v. Crown Cork and Seal Co., Inc., the United States Court of Appeals for 

the Third Circuit concluded that the plaintiffs “did not and could not have raised 

their Title VII claims before the PHRC, as the PHRC was created solely to 

administer the PHRA.” 888 F.2d at 277. Therefore, because the plaintiff in that 

case had proceeded only in adjudicative bodies of limited original jurisdiction (the 

PHRC and the Commonwealth Court), where she could not have asserted her Title 

VII claim, the court concluded that Pennsylvania law did not preclude her 

subsequent Title VII action in federal court.2 

Similarly, in the case at bar Plaintiff first brought his unlawful termination 

claim in front of the PHRC, and that decision was later affirmed by the 

 

1 Defendant bases his argument that Plaintiff’s Title VII claim should now be precluded because of the previous 

PHRC litigation on one other Third Circuit case, Gregory v. Chehi. However, even that case agrees that “[w]hen a 

plaintiff relies on both state and federal law, the Restatement advocates claim preclusion, provided that the first 

court to adjudicate the matter has jurisdiction to entertain the omitted claim.” 843 F.2d at 117. Moreover, the Third 

Circuit in McNasby explicitly distinguished Gregory, stating that “[a]lthough . . . Gregory . . . precluded civil rights 

plaintiffs from raising federal claims in federal court, [that] case involved an appeal of an a municipal agency 

determination to the Pennsylvania Court of Common Pleas, a court of general original jurisdiction. . . Thus we noted 

in Gregory that the plaintiff could have brought his section 1983 action in that court.” 888 F.2d at 278.

2 Moreover, the court in McNasby specifically disclaimed any reliance on the fact that federal courts had exclusive 

jurisdiction over Title VII claims, stating, “Fortunately, we need not enter this quagmire, because in this case, it is 

clear that McNasby never pursued her state law claim in an adjudicative body that could have asserted original 

jurisdiction over her Title VII claim.” 888 F.2d at 277.

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Commonwealth Court of Pennsylvania. Because both of these courts are ones of 

limited original jurisdiction, Plaintiff has, as of yet, had no occasion to bring his 

Title VII claim. Consequently, claim preclusion does not now act to bar Plaintiff’s 

Title VII claim in federal court and Defendant’s motion to dismiss Plaintiff’s 

complaint is denied.

IV. CONCLUSION

Based on the foregoing analysis, Defendant’s motion to dismiss Plaintiff’s 

complaint is denied.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

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