Opinion

Ancharski v. Cornell Storefront Systems, Inc.

Court
District Court, M.D. Pennsylvania
Filed
Mar 10, 2023
Cited by
0 cases
Authority
More cited than 29.2%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

NINA ANCHARSKI,

Plaintiff, CIVIL ACTION NO. 3:21-cv-02169

v. (SAPORITO, M.J.)

CORNELL STOREFRONT

SYSTEMS, INC.

Defendant.

MEMORANDUM

This is an employment discrimination case. The plaintiff, Nina

Ancharski, has raised gender discrimination and retaliation claims

under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

2000e et seq., and the Pennsylvania Human Relations Act, (“PHRA”) 43

P.S. § 951 et seq., and an Equal Pay Act claim under 29 U.S.C. § 206(d)

against her former employer, Cornell Storefront Systems, Inc. Cornell

has filed a partial motion to dismiss the complaint under Fed. R. Civ. P.

12(b)(6) related only to the Title VII and PHRA claims which is before

the court for disposition. (Doc. 9). The parties have briefed the motion.

(Doc. 12; Doc. 15-1; Doc. 18).

Cornell’s motion to dismiss is ripe for disposition. For the reasons

set forth herein, we will grant the motion.

I. Statement of Facts

As Cornell’s motion to dismiss does not involve the Equal Pay Act

claim, we will confine the facts to the Title VII and PHRA claims as set

forth in the complaint.

Ancharski was employed by Cornell as a project coordinator from

May 5, 2009, through September 11, 2020, the date she claims she was

unlawfully constructively discharged. In September or October of 2019,

Cornell hired two males to serve as project managers. Ancharski trained

them and they performed the same duties as assigned to her. The males

were compensated at a salary of $75,000, while Ancharski was paid

$17.00 per hour. Despite her qualifications and experience, her request

to apply for a project manager position was denied.

Ancharski made a complaint of gender discrimination to Cornell in

October 2019. Cornell failed to take any corrective action. Sometime

after her complaint to Cornell, Ancharski learned that all female

employees in her department were paid less than males who performed

the same work. Despite Ancharski’s continuing objections and

conversations with her direct supervisor, Cornell refused to adjust her

compensation or cease its alleged discriminatory practices.

On July 7, 2021, Ancharski filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”) alleging gender

discrimination and disparate pay. On August 26, 2021, she filed an

amended charge with the EEOC. However, on August 20, 2021, Cornell

filed a complaint against Ancharski in the Court of Common Pleas of

Luzerne County, Pennsylvania for breach of contract, inevitable

disclosure, Pennsylvania Secret Act, breach of fiduciary duty and duty of

loyalty, and tortious interference, which was based upon her filing an

EEOC charge.

Ancharski filed her complaint in this court on December 28, 2021.

(Doc. 21). By stipulation, Cornell was given until May 10, 2022, within

which to answer or otherwise plead in response to the complaint. (Doc.

4; Doc. 7). On May 10, 2022, Cornell timely filed its motion to dismiss.

(Doc. 9).

In its motion, Cornell seeks dismissal of the complaint because: (1)

the Title VII claims accrued more than 300 days before Ancharski filed

her charge of discrimination with the EEOC; (2) the PHRA claims

accrued more than 180-days before she filed her charge of discrimination;

and, alternatively, (3) the complaint fails to allege claims under Title VII

and PHRA.

II. Legal Standards

Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which

relief is granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a motion

to dismiss may be granted only if, accepting all well-pleaded allegations

in the complaint as true and viewing them in the light most favorable to

the plaintiff, a court finds the plaintiff’s claims lack facial plausibility.”

Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding

the motion, the court may consider the facts alleged on the face of the

complaint, as well as “documents incorporated into the complaint by

reference, and matters of which a court may take judicial notice.” Tellabs,

Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although

the Court must accept the fact allegations in the complaint as true, it is

not compelled to accept “unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation.” Morrow

v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevy,

481 F.3d 187, 195 (3d Cir. 2007). Nor is it required to credit factual

allegations contradicted by indisputably authentic documents on which

the complaint relies or matters of public record of which we may take

judicial notice. In re Washington Mut. Inc., 741 Fed. App’x 88, 91 n.3 (3d

Cir. 2018); Sourovelis v. City of Philadelphia, 246 F. Supp. 3d 1058, 1075

(E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 588-89

(W.D. Pa. 2008).

III. Discussion

Title VII prohibits discrimination by an employer against an

individual based on that individual’s race, color, religion, sex, or national

origin. 42 U.S.C. § 2000e-2(a).

A. Exhaustion of Administrative Remedies

Cornell argues that Ancharski has not timely exhausted her

administrative remedies regarding her Title VII and PHRA claims. The

timely exhaustion of administrative procedures is a precondition to the

maintenance of a federal employment discrimination civil lawsuit. See 42

U.S.C. § 2000e–5(e)(1); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 105 (2002). “Filing a charge and receiving a right to sue letter are

prerequisites to an individual’s bringing suit under Title VII.” McNasby

v. Crown Cork & Seal Co., 888 F.2d 270, 282 (3d Cir. 1989). Although not

raised by Cornell, “[a] complainant may not bring a Title VII suit without

having first received a right-to-sue letter.” Burgh v. Borough Council of

Montrose, 251 F.3d 465, 470 (3d Cir. 2001).

Here, Ancharski has alleged that she received two notices of rights,

presumably containing right-to-sue letters, by electronic mail from the

EEOC, dated September 28, 2021, and September 29, 2021, respectively.

She did not allege when she received the notices, nor did she attach the

notices to the complaint. Rather, she alleged that she filed the complaint

within ninety days of her receipt of the notices of rights. We presume

that Cornell is not disputing that the plaintiff received the right-to-sue

letter on the dates of the emailed notices as alleged in the complaint.

Nonetheless, assuming the notices of rights were received as plead,

with respect to the notice dated September 28, 2021, ninety days expired

on December 27, 2021, one day before the complaint was filed on

December 28, 2021.

Here, Cornell contends that the plaintiff’s complaint filed in this

Court is untimely with respect to the Title VII claims because it was filed

more than three hundred (300) days after the date she alleges an

unlawful constructive discharge. In support of this argument, Cornell

relies on 42 U.S.C. § 2000e-(e)(1), which is set out as follows:

(e) Time for filing charges; time for service of

notice of charge on respondent; filing of

charge by Commission with State or local

agency; seniority system

(1) A charge under this section shall be filed

within one hundred and eighty days after the

alleged unlawful employment practice occurred

and notice of the charge (including the date, place

and circumstances of the alleged unlawful

employment practice) shall be served upon the

person against whom such charge is made within

ten days thereafter, except that in a case of an

unlawful employment practice with respect to

which the person aggrieved has initially

instituted proceedings with a State or local

agency with authority to grant or seek relief from

such practice or to institute criminal proceedings

with respect thereto upon receiving notice thereof,

such charge shall be filed by or on behalf of

the person aggrieved within three hundred

days after the alleged unlawful employment

practice occurred, or within thirty days after

receiving notice that the State or local agency has

terminated the proceedings under the State or

local law, whichever is earlier, and a copy of such

charge shall be filed by the Commission with the

State or local agency.

(emphasis added). The plaintiff alleged that she was unlawfully

constructively discharged on September 11, 2021. (Doc. 1 ¶23). Three

hundred days after September 11, 2023, is Friday, July 8, 2022. The

complaint alleges that Ancharski filed her charge of discrimination with

the EEOC on July 7, 2021, related to gender discrimination and disparate

pay. (Id. ¶36). However, she did not attach that document to the

complaint.

In its motion to dismiss, Cornell attached the charge of

discrimination dated July 22, 2021, and the amended charge of

discrimination dated August 26, 2021. (Doc. 9-3; Doc. 9-4). These

documents are identical to the documents attached to the plaintiff’s brief

in opposition, and thus they are undisputed. (Doc. 15-2, at 4, 6-7).

Generally, in ruling on a motion to dismiss under Rule 12(b)(6), as

a district court, we are not permitted to consider extraneous matters to

the pleadings. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,

1426 (3d Cir. 1997). There are a few exceptions to this rule, one of which

includes the court’s ability to review undisputedly authentic documents

attached to a motion to dismiss. See Rogan v. Giant Eagle, Inc., 113 F.

Supp. 2d 777, 781 (W.D. Pa. 2000); see also McNaney v. Sampson and

Morris Group, Inc., Civil Action No. 2:21-cv-1809, 2022 WL 1017388, at

*2 (W.D. Pa. Apr. 5, 2022) (“Federal courts have held that EEOC

documents attached to a defendant’s motion to dismiss are reviewable

without converting the motion to one for summary judgment because

they are not subject to dispute as to their authenticity and issues relating

to exhaustion and post-exhaustion timeliness form essential parts of a

plaintiff's claims.”).

In her opposition brief, Ancharski attached a copy of a purported

Form 5 charge of discrimination dated July 7, 2021 (Doc. 15-2, at 2),

presumably to demonstrate that the charge was filed with the EEOC.

However, a complaint cannot be amended by a brief in opposition. “[I]t

is axiomatic that the complaint may not be amended by the briefs in

opposition to a motion to dismiss.” Pa. ex rel. Zimmerman v. PepsiCo,

Inc., 836 F.2d 173, 181 (3d Cir. 1988) (internal citation omitted).1

Like the Title VII claims, the PHRA claims are also subject to an

exhaustion requirement. Clay v. Advanced Comput. Applications, 559

1 Even if we considered the Form 5 charge of discrimination

purportedly dated July 7, 2021, and filed with the EEOC, it is

inconsistent with the Form 5 charge of discrimination (Doc. 9-3) which

was undisputedly filed with the EEOC on July 22, 2021, because in the

body of the charge dated July 22, 2021, it refers to the attempted filing

on July 6, 2021. There is no filing alleged to have been made on July 6,

2021, in the complaint. Rather, Ancharski alleged that she “timely filed

a Charge of Discrimination,” and that “On July 7, 2021, Plaintiff filed a

Charge of Discrimination with the EEOC. . . .” (Doc. 1 ¶¶13, 36).

A.2d 917, 919 (Pa. 1989). The PHRA requires a plaintiff to file a charge

“within 180 days after the alleged act of discrimination.” 43 P.S. § 959(h).

This time period is unaffected by the enlarged time period under Title

VII. Brown v. Tait Towers Mfg., LLC, No. 5:21-CV-04573, 2022 WL

206177, at *4 (E.D. Pa. Jan. 21, 2022). Ancharski alleges that she was

unlawfully constructively discharged on September 11, 2021. One

hundred eighty days after that date was March 10, 2022. The complaint

makes no allegation of any filing with the Pennsylvania Human

Relations Commission. Ancharski concedes that her PHRA claims of pre-

discharge conduct are outside the 180-day time limitation. (Doc. 15-1, at

11). Therefore, the PHRA claims as pleaded are untimely and we will

dismiss them.

Based upon the facts alleged in the complaint and the undisputed

documents of record, which we can consider in deciding the motion before

us, the complaint was not timely filed with respect to Counts I through

IV and we are constrained to grant the motion and dismiss those counts

from the complaint.

B. Leave to Amend

The plaintiff has requested, alternatively, that if the Court granted

the defendant’s motion, that she be granted leave to amend her

complaint. The Third Circuit has instructed that if a civil rights

complaint is vulnerable to dismissal for failure to state a claim, the

district court must permit a curative amendment, unless an amendment

would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d

103, 108 (3d Cir. 2002). This instruction applies equally to pro se

plaintiffs and those represented by counsel. Alston v. Parker, 363 F.3d

229, 235 (3d Cir. 2004). In this case, it is not clear that amendment would

be futile with respect to the Title VII claims and the PHRA retaliation

claim, nor is there any basis to believe it would be inequitable. Therefore,

we will grant Ancharski leave to file an amended complaint with respect

to the Title VII claims and the PHRA retaliation claim.

An appropriate order follows.

s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.,

U.S. Magistrate Judge

Dated: March 10, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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