Formato v. Mount Airy #1, LLC
| Decision Date | 29 July 2020 |
| Docket Number | No. 3:19-CV-02237,3:19-CV-02237 |
| Parties | ROBIN FORMATO, Plaintiff. v. MOUNT AIRY #1, LLC d/b/a MOUNT AIRY CASINO & RESORT, Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Brann)
Presently before this Court is a motion to dismiss Plaintiff Robin Formato's employment discrimination complaint (Doc. 6) filed by Defendant Mount Airy # 1, LLC d/b/a Mount Airy Casino & Resort. Because Plaintiff has stated a claim upon which relief may be granted with regard to Count I, but has not with regard to Count II, the motion will be granted in part and denied in part.
Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a complaint, in whole or in part, if the plaintiff has failed to "state a claim upon which relief can be granted." A motion to dismiss "tests the legal sufficiency of a pleading"1 and "streamlines litigation by dispensing with needless discovery and factfinding."2 "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."3 This is true of any claim, "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one."4
Following the Roberts Court's "civil procedure revival,"5 the landmark decisions of Bell Atlantic Corporation v. Twombly6 and Ashcroft v. Iqbal7 tightened the standard that district courts must apply to 12(b)(6) motions.8 These cases "retired" the lenient "no-set-of-facts test" set forth in Conley v. Gibson and replaced it with a more exacting "plausibility" standard.9
Accordingly, after Twombly and Iqbal, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"10 "A claim has facial plausibility when plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."11 "Although the plausibility standard does not impose a probability requirement, it does require apleading to show more than a sheer possibility that a defendant has acted unlawfully."12 Moreover, "[a]sking for plausible grounds . . . calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of [wrongdoing]."13
The plausibility determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."14 No matter the context, however, "[w]here a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'"15
When disposing of a motion to dismiss, the Court "accept[s] as true all factual allegations in the complaint and draw[s] all inferences from the facts alleged in the light most favorable to [the plaintiff]."16 However, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions."17 "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."18
As a matter of procedure, the United States Court of Appeals for the Third Circuit has instructed that:
Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, it must tak[e] note of the elements [the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.19
Defendant, a casino, hired Plaintiff as an on-call table games dealer on June 18, 2014.20 Defendant later promoted her to a full-time dealer in September 2015.21 Plaintiff asserts that one of her supervisors touched her inappropriately on at least three occasions.22 Plaintiff complained about the conduct, but it continued.23 After her complaint of inappropriate touching, Plaintiff's work was overly scrutinized.24 She was told that management was watching her and waiting for her to make a mistake so that they could terminate her employment.25 She met with the Defendant's Human Resources Manager in December 2017 to discuss this situation.26
Plaintiff's mistreatment continued into 2018 in the following ways: Defendant denied her requests for time off whereas Defendant allowed time off to other employees who had not complained of harassment; she was issued a disciplinary warning ostensibly for turning her back on her table; and management intentionally disregarded her requests for assistance with rude and disrespectful customers.27
Based upon these allegations, Plaintiff filed the instant two-count complaint asserting causes of action for: Count I - Retaliation for engaging in protected activity in violation of Section 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) and Count II - Intentional and/or negligent infliction of emotional distress.28
Defendant moves to dismiss the complaint on the following grounds: 1) Plaintiff's complaint is untimely regarding the retaliation claim; 2) Plaintiff has failed to establish a prima facie case of retaliation; 3) Plaintiff has failed to state a valid claim for intentional and/or negligent infliction of emotional distress.
1. Plaintiff's Title VII Retaliation Claim
Count I of Plaintiff's complaint asserts a cause of action for retaliation. Defendant challenges this ground on the statute of limitations and on the prima facie case. We will discuss each challenge in turn.
Plaintiff's first cause of action is asserted pursuant to Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based upon, inter alia, sex.29 Before bringing a Title VII suit in federal district court, a plaintiff must exhaust her administrative procedures by filing a charge of discrimination with the Equal Employment Opportunity Commission (hereinafter "EEOC").30 The EEOC investigates the allegations of discriminatory conduct.31 Upon completion of the investigation, if the EEOC decides not to pursue the claim, it notifies the complaining party that it is concluding its investigation and issues a right to sue letter.32
Plaintiff must file suit within ninety (90) days of the receipt of the EEOC's "Notice of Suit Rights" commonly referred to as a right to sue letter.33 The ninety-day period starts to run when either the party or her attorney receives the right-to-sue letter, whichever is earlier.34 The ninety-day period is treated as a statute of limitations.35 It is strictly construed and "in the absence of some equitable bases for tolling, a civil suit filed even one day late is time-barred and may be dismissed."36
"The statute of limitations is an affirmative defense, and the burden of establishing its applicability to a particular claim rests with the defendant."37 Third Circuit guidance provides that a statute of limitations defense may be raised in a 12(b)(6) motion, "but only if 'the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'"38
To meet its burden of establishing that the statute of limitations bars the instant case, the Defendant has submitted several exhibits. Preliminarily, the Court must decide whether it properly can consider these exhibits. Generally, a district court may not consider matters extraneous to pleadings when ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court may, however, consider documents integral to or explicitly relied upon in a complaintwithout converting the motion to dismiss into a motion for summary judgment.39 Here, one exhibit that the Defendant submits is the Plaintiff's right to sue letter. Although Plaintiff did not attach it to the Complaint, it is integral to and explicitly referred to by Plaintiff in the Complaint.40 Therefore, it is proper for the Court to consider the right to sue letter in determining Defendant's Motion to Dismiss.41
The second document is an email sent from the EEOC to Plaintiff's counsel dated September 24, 2019.42 As this document also may affect the statute of limitations, we find that it is appropriate for the Court to consider it.43 The Plaintiff does not challenge the appropriateness of the Court relying on these documents.
In the instant case, Plaintiff alleges that the statute of limitations began to run when she received her "Notice of Suit Rights" on October 7, 2019.44 She filed the instant complaint eighty-five (85) days later on December 31, 2019. Thus, the ninety-day statute of limitations has been met. Defendant proposes two alternate dates for the start of the statute of limitations. The first is September 24, 2019, thedate of the email sent to Plaintiff's counsel from the EEOC. The second date is September 27, 2019, which is three days after the EEOC mailed the right to sue letter to Plaintiff and her counsel.
First, Defendant argues that the email received by Plaintiff's counsel from the EEOC and dated September 24, 2019 commenced the running of the statute of limitations.45 The email indicates that the EEOC was closing the charge filed by Plaintiff and that the EEOC would issue Plaintiff a "Dismissal and Notice of Rights" letter.46 This email is thus not a formal notice from the EEOC. The law provides that informal, even verbal, notice to plaintiff's counsel can start the ninety-day filing period.47 To start the statute of limitations the substance of the communication must be substantially equivalent to the information contained in a right to sue letter.48 According to the Defendant, this email notice to Plaintiff'...
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