Bostic v. AT&T of Virgin Islands, Civil Action No. 99-191 (D. V.I. 9/25/2001)

• Decision Date: 25 September 2001
• Docket Number: Civil Action No. 99-191,CIV. A. 99-191.,No. CIV. A. 99-191.
• Citation: 166 F.Supp.2d 350
• Parties: MELANIE BOSTIC, Plaintiff, v. AT&T OF THE VIRGIN ISLANDS, Defendant.
• Court: U.S. District Court — Virgin Islands

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MELANIE BOSTIC, Plaintiff, v. AT&T OF THE VIRGIN ISLANDS, Defendant.

Civil Action No. 99-191

United States District Court, D. Virgin Islands.

September 25, 2001.

Lee J. Rohn, Esq., Julie Beberman, Esq., Law Offices of Lee J. Rohn, Christiansted, VI, Attorneys for Plaintiff, Melanie Bostic.

Charles E. Engeman, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, LLC, St. Thomas, VI, Attorneys for Defendant, AT&T of the Virgin Islands.

OPINION

ORLOFSKY, District Judge.¹

I. INTRODUCTION

In this case, the Court is presented with the vexing question of what constitutes a "continuing violation" under Title VII. An employer, accused of sexual harassment, gender discrimination, and retaliation, seeks dismissal of the claims against it pursuant to Fed. R. Civ. P. 12(b)(6), asserting that each and every one is legally flawed in some fashion. Crucially, the employer argues that most of the acts upon which the Plaintiff's claims are founded occurred more than 300 days before she filed a complaint with the EEOC. Since I concur, I must consider whether claims based on the earlier acts can be saved by the application of the "continuing violation" doctrine. Concluding that they cannot, I must then determine whether the sole timely act alleged, a negative performance evaluation, can satisfy the Third Circuit's "materially adverse employment action" standard for actionable acts of retaliation or discrimination.

For the reasons set forth at greater length below, I shall grant the Defendant's motion to dismiss in part and deny it in part, dismissing with prejudice so much of the federal claims as rest on time-barred acts. Additionally, because I find that such a small fragment of the original federal claim cannot properly support a very extensive set of supplemental claims based upon Virgin Island law, I shall exercise my discretion to dismiss without prejudice the supplemental claims.

II. FACTS AND PROCEDURAL HISTORY

Melanie Bostic ("Bostic") began work at the Defendant corporation, AT&T of the Virgin Islands ("AT&T"), in June of 1995. Am. Compl. at § 4. Between February and July of 1997, Bostic was supervised by an AT&T Director of Sales named Richard Counts ("Counts"). Id. at §§ 9, 21, 24. Bostic's Complaint alleges that, beginning shortly before he took over as her supervisor, Counts made repeated unwelcome sexual advances towards her. Id. at §§ 7-19. For example, Bostic claims that in May of 1997, Counts offered to allow her to fill out her own job evaluation in exchange for sex. Id. at § 16. Bostic also alleges that Counts used his position as her supervisor to punish her for resisting and reporting his inappropriate advances. For instance, she claims that, in July of 1997, Counts attempted to suspend her for three days and place her on probation. Id. at § 22. Even after Counts was removed as her supervisor, Bostic contends, he continued to harass her with phone calls and physical intimidation. Id. at ¶¶ 26, 34, 36-41.

Bostic alleges that she repeatedly made AT&T management aware of Counts' behavior and its effects on her. Id. at 15, 20, 34, 36, 39, 44. As a result of her reports, she claims, other male AT&T employees began refusing to help her with her work assignments. Id. at ¶ 32. She also asserts that her training and telephone privileges were curtailed shortly after she began to complain about Counts. Id. at ¶¶ 28, 30.

On March 3, 1998, Bostic filed a complaint with the Virgin Islands Local Civil Rights Commission. Id. at ¶ 45; Pl.'s Br. Exh. 2. She alleges that no action has been taken in that proceeding. Am. Compl. at ¶ 45. On August 22, 1998, Bostic transferred to the AT&T affiliate in Washington, D.C. Def.'s Br. Exh. A. Bostic alleges that on January 13, 1999, AT&T sent her a performance evaluation, which she characterizes as "negative," covering the end of her time at AT&T of the Virgin Islands. Am. Compl. at ¶ 46. Two hundred and nine days later, on August 8, 1999, Bostic filed a charge of employment discrimination with the EEOC. Id. at ¶ 49, Def.'s Br. Exh. 2. Bostic received her Notice of Right to Sue from the EEOC on October 18, 1999. Am. Compl. at ¶ 50.

On November 22, 1999, Bostic commenced this suit in the United States District Court for the District of the Virgin Islands, Division of St. Croix. By Order dated February 2, 2000, the matter was transferred to the Division of St. Thomas and St. John, pursuant to 28 U.S.C. § 1404(a). AT&T filed a Motion to Dismiss for Failure to State a Claim—the Motion now before me—on February 14, 2000. An Order granting Bostic's motion to amend her Complaint was entered on April 19, 2000.

On February 6, 2001, Bostic's suit was assigned to this Court, pursuant to 28 U.S.C. § 292(b), by Order of Chief Judge Edward R. Becker of the United States Court of Appeals for the Third Circuit. This Court has jurisdiction over Bostic's federal claims pursuant to 28 U.S.C. § 1343(a)(4), and supplemental jurisdiction over her claims based on Virgin Islands law pursuant to 28 U.S.C. § 1367.

III. STANDARD OF REVIEW

A. Rule 12(b)(6) Standard

Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for failure to state a claim upon which relief may be granted. "In considering a Rule 12(b)(6) motion, the Court may dismiss a complaint if it appears certain the plaintiff cannot prove any set of facts in support of its claims which would entitle it to relief." Mruz v. Caring, Inc., 39 F. Supp. 2d 495, 500 (D.N.J. 1999) (Orlofsky, J.) (citing Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988)). "While all well-pled allegations are accepted as true and reasonable inferences are drawn in the plaintiff's favor, the Court may dismiss a complaint where, under any set of facts which could be shown to be consistent with a complaint, the plaintiff is not entitled to relief." Id. (citing Gomez v. Toledo, 446 U.S. 635, 636 (1980); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990)); see also Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Finally, Rule 12(b)(6) authorizes a court to dismiss a claim on a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326 (1989).

B. What Matter May Be Considered

In deciding a motion to dismiss, this Court ordinarily may consider only the four corners of the pleadings. Fed. R. Civ. P. 12(b). Attachments to the complaint are considered part of the complaint. Fed. R. Civ. P. 10(c). If the Court considers any other matter, it must dispose of the Motion under the provisions of Rule 56, and provide each party with notice and an opportunity to respond accordingly. Fed. R. Civ. P. 12(b); Rose v. Bartle, 871 F.2d 331, 340 (3d Cir. 1989). In this Circuit, however, a District Court may also take into account "public record[s]" and "undisputedly authentic document[s] that a defendant attaches as . . . exhibit[s] to a motion to dismiss if the plaintiff's claims are based on the document" when ruling on a 12(b)(6) motion. Pension Benefit Guaranty Corp. v. White, 998 F.2d 1192, 1196-97 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994); accord Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994) ("We may also consider matters of public record . . . ."); In re Donald J. Trump Casino Sec. Litig., 7 F.3d 357, 368 n.9 (3d Cir. 1993) (allowing consideration of exhibit where plaintiff's claims are based on that document), cert. denied, 510 U.S. 1178 (1994).

While it is not completely clear whether either of these exceptions to Rule 12(b) embraces the EEOC Charge attached by AT&T to its Memorandum in Support of Motion to Dismiss, see Def.'s Br. Exh. 2, the policy considerations underlying the "based on the document" exception suggest strongly that I may consider it. The primary purpose of Rule 12(b)'s conversion provision is to protect plaintiffs against, in effect, summary judgment by ambush. See Pension Benefit, 998 F.2d at 1196 (citing Cortec Industries, Inc. v. Sum Holding, L.P., 949 F.2d 42, 48 (2d Cir. 1991)). Plaintiffs who have actual notice of the contents of a document, and rely on it in drafting their complaint, have a much lesser need to be notified and given a chance to refute that document. Id. Additionally, there are fairness and judicial economy considerations in permitting a District Court to consider integral papers omitted from the plaintiff's pleadings: "Were courts to refrain from considering such documents, complaints that quoted only selected and misleading portions of such documents could not be dismissed under Rule 12(b)(6) even though they would be doomed to failure." Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991); accord Pension Benefit, 998 F.2d at 1196.

Applying these principles, I conclude that I may properly consider Bostic's EEOC Charge, at least for the limited purposes of determining the date filed and violations alleged, without converting AT&T's Motion to Dismiss into a Rule 56 motion. Obviously, the Plaintiff prepared the charge and is aware of its contents. Her claim cannot proceed unless she can demonstrate that the Charge was filed in a timely manner. See infra Part IV.A.1. In that sense, her claim is "based on" the document: She will ultimately have to offer a copy of it to prove her case. Cf. Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1015 (1st Cir.) (upholding district court's consideration, for purposes of 12(b)(6) motion, of a copy of a publication alleged to be libelous on theory that "[p]laintiffs unquestionably would have had to offer a copy of the article in order to prove their case"), cert. denied, 499 U.S. 821 (1988); Vizenor v. Babbitt, 927 F. Supp. 1193, 1198 (D. Minn. 1996) (considering additional materials to resolve 12(b)(6) motion where materials bore on whether plaintiffs had sufficiently exhausted their administrative remedies); Sheppard v. Texas Dep't of Transp., 158 F.R.D. 592, 597 (E.D. Tex. 1994) (same). And it...