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Case 2:13-cv-00347-TFM Document 19 Filed 07/10/13 Page 1 of 12



IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA


CELESTE RICE,

Plaintiff,


vs.



JOHN KOBIALKA, VICTOR ROCCA and
ROCCA'S ITALIAN FOODS



Defendants.




2:13-cv-347

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MEMORANDUM OPINION AND ORDER OF COURT





Pending before the Court is DEFENDANTS’ PARTIAL MOTION TO DISMISS (ECF

No. 8), filed by John Kobialka (“Kobialka”), Victor Rocca (“Rocca”), and Rocca’s Italian Foods

(“Rocca’s”) with brief in support (ECF No. 9). Plaintiff Celeste Rice (“Rice” or “Plaintiff”) filed

a brief in opposition (ECF No. 14). Accordingly, the motion is ripe for disposition.

I.

Background

As the law requires, all disputed facts and inferences are to be resolved in favor of

Plaintiff, the non-moving party. The following background is drawn from the Complaint, and

the factual allegations therein are accepted as true for the purpose of this opinion.

Beginning in early June 2011, Defendant Rocca’s Italian Foods employed Plaintiff as a

packer in its facility where she was the only black employee.1 Plaintiff’s supervisor at Rocca’s

was Defendant John Kobialka, a white male; Kobialka’s supervisor at the company was

Defendant Victor Rocca, head of Rocca’s Italian Foods. The events leading up to the Complaint

began almost immediately after her employment commenced.


1. The Complaint identifies Plaintiff as a “black female” and alleges that she was the only black employee working
at Rocca’s throughout her entire term with the company. Pl.’s Compl., ECF No. 1, ¶¶ 2, 6.



Case 2:13-cv-00347-TFM Document 19 Filed 07/10/13 Page 2 of 12

Within her first week at Rocca’s, Kobialka allegedly began a campaign of discrimination

against Plaintiff based on her color and sex through the use of epithets and innuendo. For

example, Kobialka apparently quipped that Plaintiff was promiscuous, referred to her as “ghetto

booty,” “sister sledge,” and “Shananay,” and made sexual gestures while leering at her.

Notwithstanding the claimed verbal harassment, the Complaint also references at least one

physical altercation: “[o]n a third occasion, while Ms. Rice was facing some boxes, Kobialka

came up behind [her] and proceeded to grind his butt against her butt in an imitation of a sexual

dance.” Pl.’s Compl., ECF No. 1 at 2-3, ¶ 17.

According to Plaintiff, she repeatedly demanded that Kobialka cease the discriminatory

conduct referenced and continually complained about his inappropriate behavior to Rocca.

Plaintiff’s efforts were not, however, fruitful in bringing an end to the so-called campaign;

Kobialka consistently ignored her objections while Rocca initially snubbed her repeated

overtures for a shift-change. Instead, Rocca allegedly “needed a few days to think about the

situation” and kept Plaintiff off the work schedule until his decision was made. A few days later,

Rocca asked Plaintiff to turn in her keys and never again scheduled her to work despite the

exemplary service she claims to have performed for the company.

After Plaintiff’s approximate five month employ with Rocca’s ended in November 2011,

she timely filed a telephonic charge of racial and sexual discrimination with the Pennsylvania

Human Relations Committee (“PHRC) and cross-filed the charge with the U.S. Equal

Employment Opportunity Commission (“EEOC”). Plaintiff received her Right-to-Sue Letter

from the EEOC in late December 2012. This lawsuit followed.

Plaintiff commenced this action on June 24, 2013 in which she sets forth employment

discrimination claims and a common law tort action. More specifically, Plaintiff avers the

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following counts: (1) discrimination on the basis of color and sex in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”) against Kobialka, Rocca, and

Rocca’s; (2) hostile work environment in violation of Title VII against Kobialka, Rocca, and

Rocca’s; (3) discrimination on the basis of color and sex in violation of the Pennsylvania Human

Relations Act, 42 P.S. §§ 951, et seq. (“PHRA”) against Kobialka, Rocca, and Rocca’s; (4)

hostile work environment in violation of the PHRA against Kobialka, Rocca, and Rocca’s; and

(5) common law battery against Kobialka. Defendants have filed a partial motion to dismiss to

which the Court now turns.

II.

Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) challenges the legal sufficiency of a

complaint, which may be dismissed for the “failure to state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6) Upon review of a motion to dismiss, the Court must accept

all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor

of the plaintiff. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011), cert. denied,

132 S. Ct. 1861 (2012) (citing In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir.

2010)). However, as the Supreme Court of the United States has made clear in Bell Atlantic

Corp. v. Twombly, such “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” 550 U.S. 554, 555 (2007).

The Supreme Court later refined this approach in Ashcroft v. Iqbal, emphasizing the

requirement that a complaint must state a plausible claim for relief in order to survive a motion

to dismiss. 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 555). Nevertheless, “the

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plausibility standard is not akin to a ‘probability requirement,’” but requires a plaintiff to show

“more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550

U.S. at 555).



To determine the legal sufficiency of a complaint after Twombly and Iqbal, the United

States Court of Appeals for the Third Circuit instructs that a district court must take a three step

approach when presented with a motion to dismiss for failure to state a claim. Santiago v.

Warminster Twp., 629 F.3d 121, 130 n.7 (3d Cir. 2010) (noting that although Iqbal describes the

process as a “two-pronged approach,” it views the case as outlining three steps) (citing Iqbal,

556 U.S. at 675). First, “the court must “tak[e] note of the elements a plaintiff must plead to

state a claim.’” Id. at 130 (quoting Iqbal, 556 U.S. at 675) (alteration in original). Second, the

court “should identify allegations that, ‘because they are no more than conclusions, are not

entitled to the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). Third, “‘where there

are well-pleaded factual allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement for relief.’” Id. (quoting Iqbal, 556 U.S. at

679).



Accordingly, the Court must separate the factual and legal elements of the claim and

“accept the factual allegations contained in the Complaint as true, but [ ] disregard rote recitals of

the elements of a cause of action, legal conclusions, and mere conclusory statements.” James v.

City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (citing Iqbal, 556 U.S. at 678-79;

Twombly, 550 U.S. at 555-57; Burtch, 662 F.3d at 220-21). The Court “must then determine

whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible

claim for relief.’ In other words, a complaint must do more than allege the plaintiff’s entitlement

to relief. A complaint has to ‘show’ such an entitlement with its facts.” Fowler v. UPMC

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Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (citing Iqbal 556 U.S. at 678). The determination

for “plausibility” will be “‘a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679).



However, nothing in Twombly or Iqbal changed the other pleading standards for a motion

to dismiss pursuant to Rule 12(b)(6) and the requirements of Rule 8 must still be met. See

Phillips v. Co. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal citations omitted). The

Supreme Court did not abolish the Rule 12(b)(6) requirement that “the facts must be taken as

true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff

can prove those facts or will ultimately prevail on those merits.” Phillips, 515 F.3d at 231 (citing

Twombly, 550 U.S. at 553). Rule 8 also still requires that a pleading contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Iqbal, 556 U.S. at 677-78

(citing Fed. R. Civ. P. 8(a)(2)). While this standard “does not require ‘detailed factual

allegations,’ [ ] it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation” and a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

elements of a cause of action will not do.’” Iqbal, 556 U.S. at 679 (quoting Twombly, 550 U.S.

at 544-55). Simply put, Rule 8 “does not unlock the doors of discovery for a plaintiff armed with

nothing more than conclusions.” Iqbal, 556 U.S. at 678-79.

III. Discussion

Generally, Defendants advance four requests in the partial motion to dismiss. First,

Defendants ask the Court to strike Plaintiff’s claim for punitive damages under the PHRA as

improper. Second, the Individual Defendants move the Court to dismiss the Title VII claims

asserted against them in their individual capacity. Third, Defendant Kobialka argues that the

Court must dismiss the PHRA claim against him for failure to exhaust administrative remedies.

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Fourth, Defendant Kobialka submits that the Court should decline to exercise supplemental

jurisdiction over the battery claim.

Plaintiff stipulates to the dismissal of the individual Title VII claims against Kobialka and

Rocca at Counts One and Two, as well as the striking of her claim for punitive damages at

Counts Three and Four. See generally Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d

1061, 1077 (3d Cir. 1996) (holding that there is no individual liability under Title VII); Hoy v.

Angelone, 554 Pa. 134, 720 A.2d 745, 749 (Pa. 1998) (“While punitive damages also serve to

deter, simply put, we do not consider punitive damages to be consistent with the remedial nature

of the [PHRA].”). C.f. Garcia v. Newtown Twp., 819 F. Supp. 2d 416, 428 n.9 (E.D. Pa. 2011),

aff’d, 483 F. App’x 697 (3d Cir. 2012) (“Individual employees may not be held liable under Title

VII . . . nor under the PHRA, except that an individual employee may be subject to liability

under the PHRA if he or she aids or abets an unlawful discriminatory act.”) (citations omitted).

Plaintiff does, however, oppose the remaining two challenges raised by Defendants. The Court

will address those contentions seriatim.

A. Exhaustion of Administrative Remedies

Defendant Kobialka moves the Court to dismiss all claims against him for failure to

exhaust administrative remedies because Plaintiff did not name him as a Respondent in her

EEOC/PHRA charge. Relying on a recent decision by this Court, Kobialka argues that he was

prejudiced due to his absence from the administrative process. See Meyers v. California Univ. of

Pennsylvania, 2:12-CV-1258, 2013 WL 795059 (W.D. Pa. Mar. 4, 2013) (dismissing

discrimination claims for failure to exhaust administrative remedies when Plaintiff failed to name

individual defendants as Respondents in his EEOC/PHRA charge).

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Plaintiff attempts to excuse her failure to name Kobialka as a Respondent by invoking an

exception to the administrative requirement: “when ‘the unnamed party received notice’ of the

charge.” Def.’s Resp. in Opp., ECF No. 14 at 3-4 (citing Schafer v. Bd. of Pub. Educ. of the Sch.

Dist. of Pittsburgh, Pa., 903 F.2d 243 (3d Cir. 1990); Glus v. G. C. Murphy Co., 629 F.2d 248,

251 (3d Cir. 1980), vacated on other grounds sub. nom., Retail, Wholesale & Dep’t Store Union,

AFL-CIO v. G.C Murphy Co., 451 U.S. 935 (1981)). Relying on this exception, Plaintiff submits

that the language of the charge itself sufficiently put Kobialka on notice because he is featured

prominently in the body of the charge and his alleged discriminatory conduct is clearly

enumerated. The Court cannot agree.

When filing an administrative charge with the PHRC, Pennsylvania law requires that a

plaintiff provide the name and address of the respondent alleged to have committed the unlawful

discriminatory practice of which a plaintiff complains. 43 Pa. Stat. Ann. § 959 (West).

Noncompliance with the applicable procedures will generally bar a later claim. See, e.g., Hajzus

v. Peters Twp. Sch. Dist., 2:06CV1401, 2007 WL 917082 (W.D. Pa. Mar. 23, 2007); see Schafer,

903 F.2d at 251-52 (“A Title VII action ordinarily may be brought only against a party

previously named in an EEOC action.”) (citing 42 U.S.C. § 2000e-5(f)(1)).

Nevertheless, the United States Court of Appeals for the Third Circuit “recognizes an

exception when the unnamed party received notice and when there is a shared commonality of

interest with the named party.” Schafer, 903 F.2d at 252 (citing Glus, 629 F.2d at 251). See

Owens v. Allegheny Valley Sch., 869 F. Supp. 2d 653, 659 (W.D. Pa. 2012) (“The appeals court

has interpreted ‘received notice’ to mean that the unnamed party had actual notice knowledge of

the EEOC complaint.”) (citing, inter alia, Goodman v. Lukens Steel Co., 777 F.2d 113, 127–28

(3d Cir. 1985)); see also Christaldi-Smith v. JDJ, Inc., 367 F. Supp. 2d 756, 764 (E.D. Pa. 2005)

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(“[T]o find that [the defendant] received notice, the Court must find that [it] actually knew that a

charge with the EEOC had been filed.”). In Glus v. G.C. Murphy Co., our court of appeals

identified four factors to consider when deciding whether a party not named in a charge can

nonetheless be named as a litigant in a subsequent civil suit: (1) whether the role of the unnamed

party could through reasonable effort by the complainant be ascertained at the time of the filing

of the EEOC complaint; (2) whether under the circumstances, the interests of a named party are

so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and

compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; (3)

whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of

the unnamed party; and (4) whether the unnamed party has in some way represented to the

complainant that its relationship with the complainant is to be through the named party. 629

F.2d at 251 (citation omitted). “This four-prong test is not a mechanical one; no single factor is

decisive.” Id.

The Court concludes that Plaintiff has failed to exhaust her administrative remedies as to

Kobialka. Plaintiff’s Charge cites only Rocca’s as the Respondent and references Kobialka

solely in the body of the filing, although with some degree of frequency. Nonetheless, the Court

declines to hold that the language of the Charge itself provided Kobialka with the requisite notice

particularly when the record fails to indicate that he received actual notice of the accusations set

forth therein. Indeed, the record suggests that the instant federal Complaint was the first notice

to Kobialka that he was being sued for the discriminatory conduct alleged.

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Similarly, none of the Glus factors weigh in favor of a finding that Kobialka shares a

commonality of interest with the named entity.2 Kobialka was Plaintiff’s immediate supervisor,

so the latter knew his role and could have easily named him as a Respondent in addition to

Rocca’s Italian Foods. The interests of obtaining voluntary conciliation of Rocca’s (presumably

a privately held company) and Kobialka (simply an individual employee of that entity) are not so

similar that it was unnecessary to specifically include him in the administrative process.

Kobialka was instead actually prejudiced due to his absence from the administrative process

because he was deprived of the opportunity to informally resolve the claims Plaintiff now

asserts. Likewise, there is no allegation that Kobialka represented to Plaintiff that he should be

contacted only through Rocca’s.

Accordingly, Plaintiff’s claim under the PHRA against Defendant Kobialka will be

dismissed.

B. Supplemental Jurisdiction

Defendant Kobialka’s remaining position is that the Court should decline to exercise

supplemental jurisdiction over the common law battery claim. Aside from a single citation to an

unpublished decision by our court of appeals, the only argument advanced by this Defendant is

that the absence of any claim giving the Court original jurisdiction over Kobialka compels this

result.

Not surprisingly, Plaintiff disagrees with the position taken by Kobialka. Plaintiff

focuses her attention on the Title VII action asserted against Rocca’s, arguing that exercising

supplemental jurisdiction is proper because Kobialka’s purported battery forms a basis for the


2. Counsel for Defendants does not assert that the Court should dismiss Defendant Rocca on this basis even though
he is not named as a Respondent. Arguably, the facts of this matter would weigh in favor of the same exception
applicable to Rocca, the owner of the entity Defendant.

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remaining claims. Plaintiff further invokes notions of judicial economy, convenience, and

fairness to the litigants to support her position.

Jurisdiction over supplemental state law claims is governed by 28 U.S.C. § 1367(a),

which provides that “the district courts shall have supplemental jurisdiction over all other claims

that are so related to claims in the action within such original jurisdiction that they form part of

the same case or controversy under Article III of the United States Constitution.” The Court has

discretion to decline to exercise supplemental jurisdiction if “(1) the claim raises a novel or

complex issue of State law, (2) the claim substantially predominates over the claim or claims

over which the district court has original jurisdiction, (3) [it] has dismissed all claims over which

it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling

reasons for declining jurisdiction.” 28 U.S.C. § 1367(c).

None of these factors are present in this case at this juncture. The state law battery claim

hardly raises a novel or complex issue of state law; rather, it presents a textbook cause of action

sounding in Pennsylvania tort law when accepting the averments of the Complaint as true as the

Court must at this stage. The battery claim also does not substantially predominate over the Title

VII action (although the state law actions as a whole outnumber the lone federal count) but

instead tangentially relates to the surviving causes of action. C.f. Borough of W. Mifflin v.

Lancaster, 45 F.3d 780, 789 (3d Cir. 1995) (“The ‘substantially predominate’ standard, however,

is not satisfied simply by a numerical count of the state and federal claims the plaintiff has

chosen to assert on the basis of the same set of facts. An analysis more sensitive to the relevant

interests is required.”). The Court likewise has not dismissed all claims over which it has

original jurisdiction and does not find any exceptional circumstances that warrant dismissal. See

16 MOORE’S FEDERAL PRACTICE, § 106.66 (3d ed. 2000) (“If a defendant faces only state claims,

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the court must exercise its supplemental jurisdiction over those claims as long as claims remain

against other defendants for which original jurisdiction is present.”); see also id. at n.6

(collecting cases). Accordingly, the Court will continue to exercise supplemental jurisdiction

over this common law battery claim.

IV. Conclusion

For the reasons hereinabove stated, the partial motion to dismiss will be granted in part.

Accordingly, the surviving causes of action in this case are as follows: (1) discrimination on the

basis of color and sex in violation of Title VII against Rocca’s; (2) hostile work environment in

violation of Title VII against Rocca’s; (3) discrimination on the basis of color and sex in

violation of the PHRA against Rocca and Rocca’s; (4) hostile work environment in violation of

the PHRA against Rocca and Rocca’s; and (5) common law battery against Kobialka.

An appropriate Order follows.





















McVerry, J.

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA


CELESTE RICE,

Plaintiff,


vs.



JOHN KOBIALKA, VICTOR ROCCA and
ROCCA'S ITALIAN FOODS



Defendants.




2:13-cv-347

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ORDER OF COURT

AND NOW, this 10th day of July 2013, in accordance with the foregoing Memorandum

Opinion, it is hereby ORDERED, ADJUDGED and DECREED that DEFENDANTS’

PARTIAL MOTION TO DISMISS (ECF No. 8) is GRANTED IN PART as follows: (1) the

individual Title VII claims against Defendants John Kobialka and Victor Rocca at Counts One

and Two are DISMISSED WITH PREJUDICE; (2) the relief for punitive damages sought at

Counts Three and Four are STRICKEN; and (3) the PHRA claims as to Defendant John

Kobialka at Counts Three and Four are DISMISSED WITH PREJUDICE.








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BY THE COURT:

s/Terrence F. McVerry
United States District Judge

Alexander H. Lindsay, Jr.
Email: [email protected]
Lisa M. Henry
Email: [email protected]

Charles H. Saul
Email: [email protected]