1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DEBORAH M. STEWART, : 4:14-CV-1050

:

Plaintiff, : (Judge Brann)

v. :

:

KEYSTONE REAL ESTATE :

GROUP, LP, :

:

Defendant.

MEMORANDUM

November 12, 2015

Plaintiff Deborah Stewart (hereinafter “Stewart”) filed a complaint against 

her previous employer, Defendant Keystone Real Estate Group, LP (hereinafter 

“Keystone”). Initially Stewart asserted three claims against Keystone: (1) gender 

discrimination in violation of Title VII of the Civil Rights Act of 1964 (hereinafter 

“Title VII”), (2) sexual harassment and hostile work environment in violations of 

Title VII, and (3) violations of State College Ordinance 1967 (hereinafter 

“Ordinance 1967”), the State College, Pennsylvania city anti-discrimination 

ordinance.

1

Subsequently, Stewart filed a Second Amended Complaint adding a 

claim for violation of the Pennsylvania Human Relations Act.2In response to two 

motions to dismiss filed by Keystone, the Court entered an Order dismissing 

Stewart’s claims of gender discrimination under Title VII without prejudice, 

 

1 ECF No. 1.

2 ECF No. 19.

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violations of the Pennsylvania Human Relations Act with prejudice, and violations 

of Ordinance 1967 without prejudice.3The Court also struck paragraphs 123 and 

141 of Plaintiff’s Second Amended Complaint.4Stewart next filed a Third 

Amended Complaint in which she alleged the two following counts: Count I: 

Sexual Harassment and Hostile Work Environment in violation of Title VII and 

Count II: Violations of Ordinance 1967. 5

Pending before the Court is Keystone’s motion to dismiss Count II of 

Stewart’s Third Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for 

failure to state a claim upon which relief can be granted.6The Court has 

jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1367. The Parties have 

briefed the issues and the matters are ripe for resolution. For the following 

reasoning, Defendant Keystone’s motion to dismiss is granted.

I. BACKGROUND

Stewart, a female employee of Keystone from February 2002 to October 

2012,

7 was involved in a private, romantic relationship with a female co-employee, 

Amanda Thomas, beginning in December, 2011.8Stewart alleges that she was 

 

3 ECF No. 24.

4

Id.

5 ECF No. 28.

6

In its motion to dismiss, Keystone also requested that the Court strike paragraph 132 of Stewart’s Third Amended 

Complaint, as it is the same as paragraph 123 of the Second Amended Complaint, which was previously stricken by 

the Court. In filing its motion to dismiss, however, Keystone included a Certificate of Concurrence (ECF No. 27 

Attachment #2) indicating that Plaintiff concurred with the motion to strike. 

7 ECF No. 26 at ¶ 18.

8 ECF No. 26 at ¶ 67. Amanda Thomas has also filed an action in this Court. Docket Number 4:14-cv-0543. These 

two actions were consolidated pursuant to Federal Rule of Civil Procedure 42(a) for purposes of discovery and trial. 

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subjected to repeated verbal attacks and gender discrimination by Keystone’s Chief 

Operating Officer, Mary Frantz Adams, as a direct result of Keystone learning that 

Stewart was engaging in a romantic relationship with Amanda Thomas.

9

Plaintiff 

further alleges that she was severely and persistently harassed by Defendant’s 

Human Resources Manager, Matt Rager, and by Defendant’s Maintenance 

Coordinator, Glenn Miller, among other Keystone employees.10 According to 

Stewart, the sexual harassment that she suffered included vulgar and sexually 

explicit comments, spanking, neck-rubbing, verbal and physical sexual advances, 

and after-hours calls and stalking outside of the employment setting.11 

Stewart was ultimately terminated from her employment in October 2012. 

She alleges that her termination was based on her sexual orientation. Plaintiff 

asserts two causes of action in her Third Amended Complaint: sexual harassment 

and hostile work environment in violation of Title VII (Count I) and violations of 

Ordinance 1967 (Count II). 

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 

 

Docket Number 4:14-cv-1050 ECF No. 9 and Docket Number 4:14-cv-0543 ECF No. 43. These cases, however, 

remain separate actions.

9 ECF No. 26 at ¶ 2.

10 Id. at ¶ 3.

11 Id. at ¶¶ 22, 24, 27, 39, 51, 53, 54, 57-59.

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and construe all inferences in the light most favorable to plaintiff.12 However, “the 

tenet that a court must accept as true all of the [factual] allegations contained in the 

complaint is inapplicable to legal conclusions.”13 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.14 “Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do not 

suffice.”15 At the motion to dismiss stage, the court considers whether plaintiff is 

entitled to offer evidence to support the allegations in the complaint.16 

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.17 “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.”18 

“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.”19 Federal Rule of Civil Procedure 8 "requires only a ‘short and plain 

 

12 See Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 

1993). 

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

14 Kost, 1 F.3d at 183.

15 Iqbal, 556 U.S. at 678. 

16 See Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).

17 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007). 

18 Iqbal, 556 U.S. at 663-664.

19 Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa. May 5, 2008) (Lancaster, J.).

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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.'"20 Even under this lower notice pleading standard, however, 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.21 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.22 “[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.”23

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

by dispensing with needless discovery and factfinding.”24 A court may dismiss a 

claim under Rule 12(b)(6) where there is a “dispositive issue of law.”25 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.”26

 

20 Twombly, 550 U.S. at 554 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

21 See Hellmann, 2008 WL 1969311 at *3.

22 See Twombly, 550 U.S. at 561.

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

24 Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

25 Id. at 326.

26 Id. at 327.

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III. DISCUSSION

Keystone argues that Count II of Plaintiff’s Third Amended Complaint, in 

which Stewart alleges that Defendant violated Borough of State College Ordinance 

1967, should be dismissed. Keystone contends that Stewart failed to exhaust the 

administrative remedies afforded to her, which, Defendant argues, was required in 

this case. Stewart, on the other hand, argues that she did, in fact, exhaust the 

administrative remedies available to her under Ordinance 1967.

Specifically, Stewart alleges that she filed a charge with the State College 

Human Rights Commission (hereinafter “the Commission”) on January 7, 2013.27

She further alleges that the Commission required mediation and that the case 

would be dismissed if the parties failed to agree to participate in mediation.28

Therefore, she argues, Plaintiff exhausted her administrative remedies when 

Keystone declined to participate in mediation before the Commission.

29

Conversely, Keystone argues that Stewart voluntarily withdrew her charge 

with the Commission in an email sent by Plaintiff’s counsel to the Commission 

indicating that she had instructed him to file her claim with the United States Equal 

Employment Opportunity Commission (hereinafter “the EEOC”).30 Stewart’s 

 

27 ECF No. 26 at ¶ 6.

28 Id. at ¶ 7.

29 Id. at ¶ 8.

30 E-mail from J. Korsak, Esq., Plaintiff’s counsel, to Beth Johnson, Human Res. Dir. for State College Borough 

(June 4, 2013, 10:25 a.m. EST) (Docket 14-0543 ECF No. 24 at 17).

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counsel indicated that he had followed Stewart’s instruction and thanked the 

Commission for the time and effort it had put into the matter.31

In Plaintiffs’ Brief in Opposition to Defendant’s Motion Re Exhaustion of 

Remedies,

32 Stewart states that the Commission informed her counsel that if the 

respondent refused to participate in mediation, the matter would be dismissed.

Stewart’s counsel, therefore, apparently relying in good faith on the Commission’s 

message waited a few weeks and then informed the Commission of his client’s 

intention to file the charge with the EEOC. Plaintiff’s counsel subsequently filed a 

document with the Court entitled “Declaration of Joseph C. Korsak, Esq.”,

33

detailing both his conversation with Beth Johnson, the spokesperson for the 

Commission, and his actions in the weeks that followed. 

A. Additional information the court may consider in deciding a Motion to 

Dismiss

It is well settled in the Third Circuit that in deciding a 12(b)(6) motion to 

dismiss, a court may properly consider documents beyond the complaint.34

Specifically, a court may consider “matters of public record including court files, 

records and letters of official actions or decisions of government agencies and 

 

31 Id.

32 In Plaintiff’s Opposition, much of Plaintiff’s argument revolves around her Title VII claim. She cites law 

supporting her contention that a Plaintiff need not exhaust her administrative remedies in charges filed with the 

EEOC prior to commencing a Title VII action. Plaintiff’s Title VII claim, however, is not at issue with regard to 

Defendant’s motion to dismiss. Defendant only requests that the Court dismiss Count II of Plaintiff’s complaint, 

namely, her claim that Defendant violated Ordinance 1967.

33 ECF No. 31.

34 See generally Arzmendi v. Lawson, 914 F. Supp. 1157, 1160 (E.D. Pa. 1996).

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administrative bodies, documents referenced and incorporated in the complaint and 

documents referenced in the complaint or essential to a plaintiff's claim which are 

attached to a defendant's motion.”

35 In other words, a court may consider three 

types of information: matters of public record including actions of government 

agencies, matters referenced and incorporated in the plaintiff’s complaint, and 

undisputed matters essential to a plaintiff’s claim that are attached to a defendant’s 

motion.

In Arizmendi v. Lawson, for example, the Eastern District of Pennsylvania

was able to consider a letter issued by the EEOC, the authenticity of which was 

undisputed, in deciding a motion to dismiss.

36 The Western District of 

Pennsylvania in Rogan v. Giant Eagle, Inc., on the other hand, considered a letter 

not from a government agency referenced in plaintiff’s complaint.37 In Karipidis v. 

Ace Gaming LLC, the District of New Jersey considered the plaintiff’s 

administrative filings that had been attached to the defendant’s motion to dismiss, 

specifically to determine whether the plaintiff had exhausted his administrative 

remedies.38

 

35 Arzmendi, 914 F. Supp. at 1160-61. See also Rogan v. Giant Eagle, Inc., 113 F. Supp. 2d 777, 782, (W.D. Pa. 

2000)(“Since Arizmendi, numerous decisions from this jurisdiction have similarly found that a court may consider 

an undisputedly authentic document attached to a defendant's motion to dismiss, provided that the plaintiff's claims 

are based on the document, along with matters of public record . . .”(internal citations omitted)). 

36 914 F. Supp. at 1161.

37 113 F. Supp. 2d at 783.

38 No. 09-3321, 2010 WL 2521209 at *3 (D.N.J. June 9, 2010).

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In the matter at hand, there are three specific documents referenced by the 

parties: (1) the e-mail written by Stewart’s counsel and submitted to the 

Commission informing it that a charge would be filed with the EEOC,39 (2) the 

letter written by the Commission indicating that it had received Mr. Korsak’s letter 

that Stewart intended to file a charge with the EEOC and that it was closing the 

investigation,40 and (3) the Declaration of Joseph C. Korsak, Esq.41 Stewart does 

not oppose the Court’s consideration of any of the three documents. Keystone, 

however, disputes the authenticity of the information in the Korsak Declaration 

and argues that the Court should not consider the information provided in that

document.

The Court believes that it is appropriate to consider documents produced by 

the Commission, including the letter closing the case, as official actions of an 

administrative body, and therefore, a matter of public record. The Court will not 

consider the e-mail written by Plaintiff’s counsel to the Commission as it does not 

fall into any of the categories of documents which the Court may consider

according to the persuasive guidance of sister courts noted above. 

Finally, the Court shall not consider the Declaration of Joseph C. Korsak, 

Esq. in deciding Defendant’s motion to dismiss. This Declaration does not fall into 

 

39 E-mail from J. Korsak, Esq., Plaintiff’s counsel, to Beth Johnson, Human Res. Dir. for State College Borough 

(June 4, 2013, 10:25 a.m. EST)(Docket 14-0543 ECF No. 24 at 17).

40 Letter from Thomas Fountaine, II, Borough Manager, to Joseph Korsak, Esq., Plaintiff’s counsel (June 6, 

2013)(Docket 14-0543 ECF No. 24 at 85.)

41 ECF No. 31.

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any of the three categories of matters which the Court may consider. It is neither a 

matter of public record, nor an undisputed matter essential to a plaintiff’s claim 

attached to Keystone’s motion to dismiss. Lastly, unlike the letter in Rogan

ultimately considered by that court, neither the Korsak Declaration, nor the 

statements in the Declaration, specifically detailing Plaintiff’s counsel’s telephone 

conversation with Beth Johnson, were mentioned or referenced in any of Stewart’s 

three amended complaints.

B. Exhaustion of administrative remedies

The Borough of State College adopted Ordinance 1967 pursuant to Section 

962.1 of the Pennsylvania Human Relations Act (hereinafter “the PHRA”). Under

Section 962.1 of the PHRA, the State College Human Relations Commission was 

granted “powers and duties similar to those now exercised by the Pennsylvania 

Human Relations Commission.”42 Ordinance 1967 prohibits discrimination in 

employment to all persons regardless of sexual orientation or gender identity.

43

Courts have determined that where a local ordinance is adopted under the 

PHRA, all administrative remedies must be exhausted prior to filing a lawsuit.44

Section 908 provides a private right of action in any court of competent jurisdiction 

which “may be brought: 1) upon receipt by the aggrieved Person(s) of notice that 

 

42 See 43 P.S. § 962.1, see also Ordinance 1967 § 906.

43 Ordinance 1967 §§ 902, 904. 

44 See Richards v. Foulke Assocs., Inc., 151 F. Supp. 2d 610, 614 (E.D. Pa. 2001). 

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the Commission has dismissed the complaint; or 2) if no such notice is received, 

after one year from the date of the filing of the complaint.”

45

Plaintiff attempted to assert a claim under Ordinance 1967 in her Amended 

Complaint.46 That claim was dismissed with leave to amend by this Court, 

however, because Plaintiff initially failed to plead any facts related to the 

Ordinance, including whether she timely filed or whether she exhausted her 

administrative remedies. Plaintiff now asserts this claim again, alleging that she 

filed her claim timely and exhausted all of her administrative remedies.

Section 907(A) of Ordinance 1967 states that a complaint with the 

Commission must be made “within one hundred and eighty (180) days of the 

alleged act of discrimination to be considered timely.”47 Upon receipt of a 

complaint, the Commission will invite the parties to participate in mediation.48

The Commission will then dismiss a complaint, “[p]rovided the Commission has 

not elected . . . to use expanded procedures.”49

The Commission has the authority to elect to adopt expanded procedures, 

subject to the approval of the State College Borough Council and provided funding 

is available.50 Investigation of the matter is one expanded procedure option.51

 

45 Ordinance 1967 § 908.

46 ECF No. 8 at ¶ 141-148.

47 Ordinance 1967 § 907(A).

48 Ordinance 1967 § 907(C).

49 Id. at (D).

50 Id. at (E).

51 See Ordinance 1967 § 907(G).

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Section 908 then provides a private right of action upon receipt of notice that the 

Commission has dismissed the complaint or after one year from the date of the 

filing if no notice is received.52

Stewart alleges in her Third Amended Complaint that she experienced 

discrimination and was ultimately terminated from her employment on October 8, 

2012.53 Stewart then filed her charge with the Commission on January 7, 2013.

54

 

Because her claim was filed ninety-one days after the final act of discrimination, 

well within the one-hundred-and-eighty-day period permitted, Plaintiff’s claim was 

timely filed.

Stewart further alleges in her Third Amended Complaint that “Plaintiff 

exhausted her remedy before the State College Human Relations Commission.”55

She states that the Commission first required mediation and that “[i]f the parties 

[did] not both agree to mediation, the case [would be] dismissed.”56

Administrative documents sent by the Commission to the parties indicate 

otherwise. After filing the charge, the Commission sent letters to both Plaintiff and 

Defendant, dated April 24, 2013, inviting the parties to participate in mediation.

57

 

52 Ordinance 1967 § 908(B).

53 ECF No. 26 at ¶ 11.

54 Id. at ¶ 6.

55 Id. at ¶ 10.

56 Id. at ¶ 7.

57 Letter from Michael Eggert, Chairperson of the Comm’n, to Joseph Korsak, Esq., Plaintiff’s counsel (April 24, 

2013)(ECF No. 19-1 at 55). 

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This letter clearly states: 

In the event one or both parties declines to participate in the voluntary 

mediation, the Commission will move forward with the investigation of the 

complaint under the Expanded Procedures set forth in the Ordinance.58

Therefore, while the Commission reserves the authority to elect to adopt 

expanded procedures, when Stewart, through her counsel, informed the 

Commission that she intended to file the charge with the EEOC, she did so after 

notice by the Commission that it would continue to investigate the claim if either 

party refused to engage in mediation.59 The Commission consequently closed the 

case prior to the culmination of the investigation and prior to the one-year time bar 

provided by Section 908(B) of Ordinance 1967.60

Plaintiff failed to exhaust her administrative remedies as delineated above.

Accordingly, Plaintiff has no right of action under Ordinance 1967. Count II of 

Plaintiff’s Third Amended Complaint is, therefore, dismissed. 

 

58 Id.

59 It continues to be unclear to the Court why Plaintiff would withdraw her sexual orientation claim under Ordinance 

1967 to file her claim with the EEOC. As discussed at length in the Court’s last Order on Defendant’s last motion to 

dismiss, the EEOC does not prohibit discrimination on the basis of sexual orientation. See 42 U.S.C. § 2000e et. seq.

Therefore, Stewart seems to have withdrawn her sexual orientation discrimination claim to file a completely 

separate sexual harassment claim with the EEOC, which would not have affected her claim filed with the 

Commission.

60 See Ordinance 1967 § 908(B) (“The right of action created by this Ordinance may be brought: 1) upon receipt . . . 

that the Commission has dismissed the complaint; or . . . after one (1) year from the date of the filing of the 

complaint.”) The Commission’s letter closing the case was dated June 6, 2015 (ECF No. 24 at 85), six months and 

one day after the charge was initially filed by Plaintiff. 

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IV. CONCLUSION

In accordance with the foregoing analysis, Defendant’s motion to dismiss is 

granted.

An appropriate Order follows.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

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