Summary
In Lentz v. Gnadden Huetten Mem'l Hosp., No. 04-3147, 2004 U.S. Dist. LEXIS 22744 (E.D. Pa. Nov. 8, 2004), a case not cited by Mr. Zarazed, the court held "while there are other bases for respondeat superior liability under Title VII, an employer may be found liable for its negligence in failing to train, discipline, fire or take remedial action upon notice of harassment." Id., at *6-7 (citing Burlington Indus. v. Ellerth, 524 U.S. 742, 758 (1998)).
Summary of this case from ZARAZED v. SPAR MANAGEMENT SERVICES, INC.Opinion
Civil Action No. 04-3147.
November 8, 2004
MEMORANDUM
Before the court is the motion of defendants Gnadden Huetten Memorial Hospital ("GHMH"), Darlene Burkhardt, Terry Purcell, and Mary Susko for partial dismissal of the complaint of plaintiff Marguerite Lentz pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff's action centering on gender discrimination, sexual harassment, and retaliation is brought under Title VII of the Civil Rights Act of 1964 and 1991, as amended, 42 U.S.C. § 2000e, et seq., the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 951, et seq., and Pennsylvania common law.
For present circumstances, we will accept all well-pleaded facts as true. Plaintiff was employed by defendant GHMH from September, 1993 until her termination in January, 2003. During the relevant periods, defendant Burkhardt was the Nursing Supervisor for GHMH, defendant Purcell was Vice President of Human Resources, and defendant Susko was Vice President of Nursing. All three individual defendants were supervisors at GHMH, and defendants Burkhardt and Susko supervised plaintiff. Plaintiff maintains that defendants' treatment of her as a single mother was different from that of other employees, such that she received constant criticism and written warnings and was forced to work a shift that prevented her from being home to care for her daughter. She made repeated complaints to GHMH and to her supervisor. According to plaintiff, the alleged adverse treatment culminated in her being discharged without cause on or about January 22, 2003, the day she returned from approved leave taken under the FMLA for medical problems.
A complaint should be dismissed under Rule 12(b)(6) only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002). In ruling on a motion to dismiss, we need not decide whether plaintiff will ultimately be able to prove her claims. The Supreme Court has held that to survive a motion to dismiss, a plaintiff alleging employment discrimination is not required to plead facts necessary to establish a prima facie case of discrimination, but rather simply a "short and plain statement of the claim showing that the pleader is entitled to relief."Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citing Fed.R.Civ.P. 8(a)(2)). All reasonable inferences are drawn in favor of the non-moving party. See Univ. of Md. at Balt. v. Peat, Marwick, Main Co., 996 F.2d 1534, 1538 (3d Cir. 1993).
Defendants first argue that Counts II, IV, and V, brought under the PHRA, should be dismissed as untimely because plaintiff failed to file her claims under the PHRA within 180 days of the alleged discrimination. 43 Pa. Cons. Stat. Ann. § 959(h). Plaintiff filed an initial Charge of Discrimination with the Equal Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC") "[o]n or about November 13, 2003." Compl. ¶ 4. Because the last act complained of took place on January 22, 2003, and because November 13, 2003 was clearly more than 180 days later, plaintiff concedes that Counts II, IV, and V may properly be dismissed.
Next, defendants maintain that plaintiff's negligence claim is not cognizable under Title VII, and therefore Count VI should be dismissed. Count VI alleges that defendant GHMH was negligent in failing to implement an effective policy against sexual harassment, to investigate properly plaintiff's complaints, to take any action to remedy those complaints, to discipline its employees engaging in sexual harassment, and to take steps to prevent illegal retaliation. In essence, defendants argue that Count VI is a restatement of the respondeat superior element of her hostile work environment/sexual harassment claim and that a negligence claim in and of itself does not exist independently under Title VII.
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. To establish a prima facie claim of sexual harassment based on a hostile work environment, plaintiff must demonstrate the following: (1) she suffered intentional discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the discrimination would detrimentally affect a reasonable person; and (5) the existence of respondeat superior liability. Kunin v. Sears Roebuck Co., 175 F.3d 289, 293 (3d Cir. 1999), cert. denied, 528 U.S. 964 (1999).
As a general rule, an employer is liable for the negligent acts of its employee when the employee acts within the scope of his or her employment. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 756 (1988). However, sexual harassment by one employee or supervisor against another employee is intentional conduct and is usually personal in nature and thus outside the scope of one's employment. Even so, the Supreme Court ruled in Burlington Industries, Inc. v. Ellerth that respondeat superior liability attaches under Title VII in accordance with common law agency principles. It cited § 219(2) of the Restatement (Second) of Agency:
A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(a) the master intended the [servants'] conduct or the consequences, or
(b) the master was negligent or reckless, or ©) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.Ellerth, 524 U.S. at 758 (quoting Restatement (Second) of Agency § 219(2)) (emphasis added). As the Supreme Court explained in Ellerth, "although a supervisor's harassment is outside the scope of employment because the conduct was for personal motives, an employer can be liable, nonetheless, where its own negligence is a cause of the harassment." Id. Accordingly, while there are other bases for respondeat superior liability under Title VII, an employer may be found liable for its negligence in failing to train, discipline, fire or take remedial action upon notice of harassment. Id. The theory of negligence grounded in Count VI is viable.
Defendants also maintain that Count VII, which claims a violation of the FMLA, should be stricken because plaintiff returned from her FMLA leave to the same position, and it was only after she returned to work that she was allegedly required by her supervisors to work a different shift. Plaintiff argues that she has stated an FMLA violation because the complaint alleges her supervisors refused to return her to her former shift where there were positions available. See Compl. ¶¶ 28(m), 28(n).
Section 2612(a)(1)(D) of the FMLA provides entitlement to up to twelve weeks of leave in a twelve-month period for a serious health condition which prevents a covered employee from performing the functions of her job. 29 U.S.C. § 2612(a)(1)(D). Upon the employee's return from such leave, the employee is entitled to be restored either to the same position she held when the leave commenced or to an equivalent position with equivalent compensation and terms and conditions of employment. 29 U.S.C. § 2614(a)(1). Plaintiff maintains that "on or about January 22, 2003, the day [she] returned from her FMLA leave," she was summoned to her supervisor's office, where defendants Burkhardt and Susko "told her, in no uncertain terms and in a threatening manner, that she 'had to work' either the 3 P.M. to 11 P.M. shift or the 11 P.M. to 7 A.M. shift in the nursing home or she 'had no job.'" Compl. ¶ 28(m).
Although the complaint is inconsistent in that paragraph 26 states plaintiff returned from FMLA leave on January 21, 2003, and paragraph 28(m) states she returned on January 22, 2003, plaintiff specifically alleges she was told she had to work a different shift on "the day [she] returned from her FMLA leave." Compl. ¶ 28(m). Defendants cite no authority for the proposition that reassignment of an employee to an inequivalent position one day after the employee returns from leave under the FMLA is not actionable. We will not dismiss Count VII.
Next, defendants argue that we should dismiss Count VIII because plaintiff's claim for intentional infliction of emotional distress is barred by the Pennsylvania Workers Compensation Act ("PWCA"). Citing § 481(a) of the PWCA, defendants contend that the exclusivity provision of the PWCA protects an employer against claims for intentional infliction of emotional distress resulting from sexual harassment.
Without opining on defendants' contention about § 481(a), we note that Count VIII of plaintiff's complaint has been brought against defendants Burkhardt, Purcell, and Susko individually, not against plaintiff's employer, GHMH. Thus, § 72 of PWCA applies. Section 72 provides:
If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.
Pa. Stat. Ann. tit. 77, § 72 (emphasis added). Thus, under the intentional wrong exception under the PWCA, plaintiff has stated a claim against her fellow employees for intentional infliction of emotional distress. See Vosburg v. Connolly, 591 A.2d 1128, 1132-33 (Pa.Super.Ct. 1991).
Defendants make a second argument for dismissal of Count VIII. They contend the actions complained of do not constitute the kind of extreme conduct required to state a claim for intentional infliction of emotional distress under Pennsylvania law.
A cause of action for intentional infliction of emotional distress is defined as:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Restatement (Second) of Torts § 46(1) (1965). Liability "clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . . . plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind." Hunger v. Grand Cent. Sanitation, 670 A.2d 173, 177 (Pa.Super.Ct. 1996) (quoting Restatement (Second) of Torts § 46 comment (d)).
As stated by our Court of Appeals in Andrews v. City of Philadelphia and restated by the Pennsylvania Supreme Court inHoy v. Angelone, "the only instances in which courts applying Pennsylvania law have found conduct outrageous in the employment context is where an employer engaged in both sexual harassment and other retaliatory behavior against the employee. . . . The extra factor that is generally required is retaliation for turning down sexual favors." Andrews, 895 F.2d 1469, 1487 (3d Cir. 1990); Hoy II, 720 A.2d at 754. The Supreme Court of Pennsylvania has further declared that "[b]y regarding retaliation as a weighty factor, but not a mandated factor, we allow for the rare case in which a victim of sexual harassment is subjected to blatantly abhorrent conduct, but in which no retaliatory action is taken." Hoy II, 720 A.2d at 754.
The conduct of which plaintiff complains includes negative evaluations, public and constant criticism, disparate discipline, disparate treatment, and written warnings. She alleges that she was ordered by Burkhardt to switch to a department with different hours and when plaintiff told Burkhardt that the hours conflicted with her need to care for her young child, "Burkhardt screamed, 'That's not my problem.'" Compl. ¶ 28(g). Additionally, plaintiff alleges that upon returning from her FMLA leave, she was summoned to the Department Manager's office for a meeting with the Department Manager, Burkhardt, and Susko, "who told her, in no uncertain terms and in a threatening manner, that she 'had to work' either the 3 P.M. to 11 P.M. shift or the 11 P.M. to 7 A.M. shift in the nursing home or she 'had no job.'" Compl. ¶ 28(m). The retaliation claimed by plaintiff here allegedly is for complaints and reports she made of sexual harassment and gender discrimination by defendants Burkhardt, Purcell, and Susko.
Defendants argue that the courts applying Pennsylvania law have dismissed claims for intentional infliction of emotional distress under circumstances far worse than those alleged here. Defendants may be correct in their assertion, but it would be premature to dismiss Count VIII on this undeveloped record. Therefore, we will not dismiss Count VIII.