Brennan v. National Telephone Directory Corp.

Citation850 F. Supp. 331
Decision Date28 April 1994
Docket NumberNo. 93-CV-5899.,93-CV-5899.
PartiesAmy BRENNAN, Plaintiff, v. NATIONAL TELEPHONE DIRECTORY CORPORATION, Penn-Del Directory Corporation, Bell Atlantic Enterprises International, Inc. d/b/a Bell of Pa Yellow Pages, Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania



John J. Delany, III, David P. Bateman, Callahan, Delany & O'Brien, Philadelphia, PA, for plaintiff.

Francis M. Milone, Stacy K. Weinberg, Morgan, Lewis & Bockius, Philadelphia, PA, Gerald M. Yuknis, Penn-Del Directory Corp., Somerset, NJ, for defendants.


JOYNER, District Judge.

This matter involves a motion by defendants to dismiss or, in the alternative, for summary judgment to dismiss all counts of plaintiff's complaint. The pertinent facts are as follows. Plaintiff, a New Jersey resident, is a former employee of Penn-Del Directory Corporation ("PDD"), which is located in Bensalem, Pennsylvania. According to the parties, there is some confusion over who was actually plaintiff's employer.1 In her complaint, plaintiff alleges that either PDD or National Telephone Directory Corporation ("NTD") hired her, however, defendants assert that NTD was not plaintiff's employer. NTD is a New Jersey corporation and maintains its principal offices in Somerset, New Jersey. NTD and PDD apparently were both wholly-owned subsidiaries of Bell of Canada Enterprises ("BCE"), which sold PDD and NTD to Bell Atlantic on January 23, 1993. In any event, plaintiff was hired as a sales training coach on April 7, 1986 and she worked in the Bensalem office. She eventually was promoted to district sales manager, and finally, in 1988, took a position as an account executive with PDD. As part of plaintiff's scope of employment, she apparently travelled in both Pennsylvania and New Jersey.

In July, 1992, while plaintiff was out on maternity leave, she received a notice from defendants that she was being potentially charged with six sales errors. Apparently, according to company policy, every employee charged with four chargeable errors in a single calendar year was subject to termination. Plaintiff discussed these errors with defendants' representatives during a telephone call. She alleges that these representatives admitted that several of the alleged errors, some of which dated back to 1989, came into being because plaintiff took maternity leave, and that the errors were actually not her fault. Despite this, plaintiff was charged with the errors, and was terminated from her employment on July 9, 1992.

Plaintiff filed an eleven-count complaint with this Court on November 8, 1993. Thereafter, defendants filed the present motion on December 9, 1993. Plaintiff's response was filed on December 22, 1993. Both parties have also filed reply briefs. Accordingly, defendants' motion is now ripe for consideration.


A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is the appropriate method in which to challenge the legal sufficiency of a claim. See United States v. Marisol, Inc., 725 F.Supp. 833 (M.D.Pa.1989). In ruling upon a 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir.1990). In so reviewing the pleadings and any materials of record, the court must accept as true all of the matters pleaded and all reasonable inferences that can be drawn therefrom, construing them in the light most favorable to the non-moving party. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir.1990); Hough/Loew Assoc., Inc. v. CLX Realty Co., 760 F.Supp. 1141, 1142 (E.D.Pa.1991). A complaint is properly dismissed if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Ramson v. Marrazzo, 848 F.2d 398, 401 (3rd Cir.1988).

Under the Federal Rules of Civil Procedure, where a party attaches materials outside the pleadings to a motion to dismiss, the motion may be converted into a motion for summary judgment. Fed.R.Civ.P. 12(c). Whether or not to treat the motion as a motion for summary judgment by considering the outside materials attached thereto is a matter of discretion for the court. Wiley v. Hughes Capital Corp., 746 F.Supp. 1264, 1275 (D.N.J.1990); Kelley ex. rel. Michigan NRC v. Arco Indus., 721 F.Supp. 873, 877 (W.D.Mich.1989). However, courts have held that exercise of the court's discretion is not warranted where there has been little or no discovery conducted by the parties. Brug v. The Enstar Group, Inc., 755 F.Supp. 1247, 1251 (D.Del.1991); Ospina v. Dept. of Corrections, 749 F.Supp. 572, 574 (D.Del.1990); Kelley, 721 F.Supp. at 877-78. Considering the motion as a motion for summary judgment would be improper in those situations because the parties may not be able to present enough material to support or oppose a motion for summary judgment since no factual record has yet been developed. Ospina, 745 F.Supp. at 574 (citing Melo v. Hafer, 912 F.2d 628, 634 (3rd Cir.1990), aff'd, ___ U.S. ___, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)).

In the present case, defendants filed this motion approximately one month after the complaint was filed. The parties had not yet conducted any discovery when the motion was filed. Although plaintiff has filed some exhibits along with her motion in opposition to defendants' motion, we feel it would be premature to consider this motion as a motion for summary judgment given the factual nature of some of the issues raised in defendants' motion. As such, we decline to consider the materials attached by both parties, and will consider this motion only as a motion to dismiss.

A. Count I — Title VII

Plaintiff's first count alleges that defendants discriminated against her in violation of 42 U.S.C. § 2000e-2 and 42 U.S.C. § 2000e(a) on the basis of her sex and/or pregnancy. Defendants now claim that they are entitled to summary judgment on count one because plaintiff cannot establish a prima facie case of discrimination.

In order to demonstrate a prima facie case of discrimination, the employee must show that she 1) belonged to a protected class, 2) that she was qualified for the job from which she was discharged, and 3) that others not in the protected class were treated more favorably than plaintiff. Weldon v. Kraft, 896 F.2d 793, 797 (3rd Cir.1990) (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 250-52, 101 S.Ct. 1089, 1092-93, 67 L.Ed.2d 207 (1981)). However, courts have recognized that this test is not the only way to demonstrate a prima facie case. Lewis v. University of Pittsburgh, 725 F.2d 910, 914 n. 4 (3rd Cir.1983), cert. denied, 469 U.S. 892, 105 S.Ct. 266, 83 L.Ed.2d 202 (1984).

In the present case, defendants argue they are entitled to summary judgment because it is undisputed that plaintiff cannot prove any set of facts showing that others not in the protected class were treated more favorably. However, as noted above, this factual determination is premature since we are only considering this motion as a motion to dismiss. In reviewing the complaint, we note that plaintiff has alleged that "no male account executive with the defendants had ever undergone the scrutiny of sales and account records dating back over a span of years while on disability-related leave that the Plaintiff underwent in July of 1992." Complaint, para. 33. She further alleges that no man in the Bensalem office had ever been discharged for errors except for one person who was a member of a protected class (ADEA). Id. at para. 34. She also alleges that the scrutiny which she underwent was unprecedented, in addition to being pretextual. Id. Thus, while defendants argue they are entitled to summary judgment because plaintiff cannot prove a prima facie case of discrimination, we find that by looking at the complaint in a light most favorable to plaintiff, plaintiff has alleged facts which, if true, would show that others not in the protected class were treated more favorably than plaintiff. While we state no opinion as to whether plaintiff will be able to prove this claim, at this point in time, plaintiff's claim survives a motion to dismiss.

B. Count II — Title VII

Defendants next claim that count II must be dismissed because it is untimely. Count II is another Title VII claim for pregnancy discrimination and asserts that defendants refused to accommodate plaintiff's request that she not work overtime during her pregnancy on behalf of her doctor's advice. Plaintiff alleges that she was advised that it was not company policy to make accommodations on account of pregnancy, and that she had to comply with all of her job requirements or else take immediate disability. Complaint, para. 49. She further alleges that she was required to return to her doctor and obtain a note stating she was able to perform all of her job functions. Id. at para. 51. Plaintiff alleges that these acts occurred sometime in December 1991.

Defendants now argue that plaintiff's Title VII claim is untimely. They essentially argue that plaintiff failed to properly file her discrimination claim with the Equal Employment Opportunity Commission ("EEOC") because she did not first file a claim with the Pennsylvania Human Relations Commission ("PHRC"). Defendants claim that in order for plaintiff's claim to be timely, her claim with EEOC could not be filed until sixty days after the claim was filed with PHRC by virtue of 42 U.S.C. § 2000e-5(c), which provides that "no charge may be filed ... by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless...

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