Opinion
Civil Action No. 03-0738
November 5, 2003
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons stated below, it is recommended that Defendants' Motion to Dismiss (Doc. 3) be granted in part and denied in part, as specified in the "Conclusion" section of this Report and Recommendation.
II. REPORT
BACKGROUND
1. Procedural History
Cynthia Long ("the Plaintiff") commenced this action against Pizza Hut(Store #635008) ("Pizza Hut") and Tri-L Pizza Huts, Inc. ("Corporate Pizza Hut"; referred to collectively with Pizza Hut as "the Defendants") on May 22, 2003. See generally Compl. (Doc. 1).
The Plaintiff generally alleges that over the course of her approximately two-month employment at Pizza Hut, she was repeatedly subjected to racially derogatory insults by two of her shift managers. See id. ¶¶ 8-11. According to the Complaint, the "ongoing racially charged atmosphere and abuse" inevitably led to "severe bouts of depression and anxiety [and] caused her to discontinue working. . . ." See id. ¶¶ 11 13.
The Complaint specifically alleges claims against the Defendants based on purported violations of the following statutes: (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), see Count I; (2) Section 1981 of Title 42 of the United States Code, 42 U.S.C. § 1981 ("Section 1981"), see Count II; and (3) the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. ("PHRA"), see Count III. In addition, the Complaint asserts a state law claim of intentional infliction of emotional distress ("IIED") against the Defendants. See Count IV. The Plaintiff seeks, inter alia, compensatory damages, front and back pay, liquidated damages, punitive damages, damages from lost benefits, medical expenses, and attorney's fees and costs. See Remedies.
On July 23, 2003, the Defendants filed a Motion to Dismiss Plaintiff's Complaint (the "Defendants' Motion") pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)" or "12(b)(6)"). See Defs.' Mot. To Dismiss Pl.'s Compl. (Doc. 3). The Defendants contemporaneously filed a memorandum supporting its position. See Mem. in Supp. of Defs.' Mot. to Dismiss Pl.'s Compl. (Doc. 4; hereinafter cited as "Defs.' Mem."). The Plaintiff filed a opposition brief on September 3, 2003. See Pl.'s Br. in Opp'n to Mot. to Dismiss (Doc. 9.; hereinafter cited as "Pl.'s Br."). The Defendants' Reply Memorandum in Support of Their Motion to Dismiss ("the Defendants' Reply") was filed on September 15, 2003. See Defs.' Reply Mem. in Supp. of Their Mot. to Dismiss (Doc. 10; hereinafter cited as "Defs.' Reply").
2. Factual Averments
According to the Complaint, Pizza Hut initially retained the Plaintiff as a "production assistant" on November 15, 2001. See Compl. ¶ 8.
Problems purportedly began on or around December 1, when Joseph Elsleger ("Elsleger"), the Plaintiff's shift manager, "loudly called [her] a 'nigger' in the restaurant during a busy period . . . which was delivered in a serious and offensive manner." See id. ¶ 9. The comment was allegedly overheard by a "large number of customers and co-employees." See id.
Over the course of December, Elsleger allegedly directed various "racially derogatory comments" towards the Plaintiff, which specifically included: (1) referring to the Plaintiff's son as a "black bastard"; (2) stating that "all these black people aren't doing any work"; and (3) opining that "all these nigger people just stand around." See id. ¶ 10. The Complaint states Elsleger was fired on December 22, 2001. See id.
Elsleger's replacement, Joseph Haskey ("Haskey") allegedly "blamed" the Plaintiff for Elseger's termination, and in a manner similar to his predecessor, "continued to use racially derogatory and offensive remarks toward the Plaintiff." See id. ¶ 11. Specifically, it is alleged that Haskey persistently referred to the Plaintiff as "Aunt Jemima" and "shiny." See id.
The Plaintiff allegedly attempted to use Corporate Pizza Hut's hotline to complain about her working environment, but alleges that her message was not returned. See id. As a result of her "emotional and psychological distress," the Plaintiff began calling off work and sought medical treatment during the month of January, 2002. See id. ¶ 12. The Plaintiff has not returned to work since the middle of that month. See id. The Plaintiff alleges that she "continues to be disqualified from work by her treating physicians" and was finally terminated on February 15, 2002. See id.
3. Legal Standard
In reviewing a motion to dismiss under Rule 12(b)(6), "[t]he applicable standard of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989) (citations omitted). Dismissal of a complaint is proper only where "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 559 (3d Cir. 2002) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
ANALYSIS 1. The Plaintiff Has Stated a Hostile Work Environment Claim Under Title VII, Section 1981, and the PHRA.
The Defendants' primary argument for dismissal is that the conduct alleged in the Plaintiff's Complaint, taken as a whole, is not sufficiently severe or pervasive as to constitute an actionable hostile work environment. See generally Defs.' Mem. at 3-5.
To establish a prima facie case for a hostile work environment — as outlined by the United States Court of Appeals for the Third Circuit ("the Third Circuit") — a plaintiff must show: (1) she suffered intentional discrimination because of her membership in a protected class; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the discrimination would have detrimentally affected a reasonable person in the same position; and (5) the existence of respondeat superior liability. See Sherrod v. Philadelphia Gas Works, 57 Fed.Appx. 68, 75 (3d Cir. Jan 29, 2003) (citing West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995)). The analysis is the same whether under Title VII, Section 1981, or the PHRA. See id. (citing Harley v. McCoach, 928 F. Supp. 533, 538 (E.D. Pa. 1996)). Thus, while the court expressly addresses only Title VII, it implicitly addresses the claims under Section 1981 and the PHRA as well.
Moreover, as the Defendants correctly point out, "[a] hostile work environment is actionable only if the harassment 'is so severe and pervasive as to alter the conditions of the victim's employment and create an abusive working environment'." See id. at 3 (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001)). Further, "Title VII is not meant to be a 'general civility code,' and 'simple teasing, . . . offhand comments, and isolated incidents (unless extremely serious) will not amount to discrimatory changes in the terms and conditions of employment'." See id. at 3 (citing inter alia Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998)).
The Defendants conclude that the Plaintiff's allegations "that two shift managers uttered certain inappropriate and offensive racial names and comments over a matter of a relatively few weeks . . . [are not] sufficient and pervasive enough to alter the terms and conditions of her employment." See id. at 4.
The Plaintiff responds that under the liberal notice-pleading standards of the Federal Rules of Civil Procedure, the Complaint sufficiently states a cause of action for a hostile work environment. See Pl.'s Br. at 1-2 (citing Fed.R.Civ.P. 8(a)). In addition, the Plaintiff cites the Supreme Court's decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), for the proposition that the pleadings need not precisely outline a prima facie case to survive a motion to dismiss under Rule 12(b)(6). See Pl.'s Br. at 2.
The Defendants' Reply in turn asserts that notwithstanding theSwierkiewicz decision, a plaintiff is still obligated to allege conduct that is "so severe or pervasive" as to alter the conditions of employment, and otherwise make out a prima facie case in the context of a hostile work environment claim. See Defs.' Reply at 2.
For the reasons stated below, the undersigned concludes that the Plaintiff has sufficiently alleged conduct to state a claim for a hostile work environment and that the Defendants' arguments are, at best, premature in the context of a motion to dismiss pursuant to Rule 12(b)(6).
As a threshold matter, the court notes that The Third Circuit has recently confirmed, citing Swierkiewicz, that "a complaint [at the 12(b)(6) stage] requires only a 'short and plain statement' to show a right to relief, not a detailed recitation of the proof that will in the end establish such a right." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 564 (3d Cir. 2002) (citingSwierkiewicz, 534 U.S. at 512-13). In addition, it is well-settled that a complaint is sufficient if it adequately puts the defendant on notice of the essential elements of a cause of action. See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). This notice pleading standard expects "liberal discovery rules and summary judgment motions to define disputed facts and issues to dispose of unmeritorious claims." Forbes v. State Univ. of N.Y. at Stony Brook, 259 F. Supp.2d 227, 232 (E.D.N.Y. 2003) (quotingSwierkiewicz, 534 U.S. at 512).
Despite the Defendants' musings, these liberal pleading requirements are not suspended within the context of hostile work environment claims; instead, they govern with the same force as they do in other Title VII claims. See, e.g., Gorski v. N.H. Dep't of Corr., 290 F.3d 466, 473 (1st Cir. 2002) (stating, in the context of a hostile work environment claim, that the complaint "need only satisfy the simple requirements of Rule 8(a)" and "that the Federal Rules do not contain a heightened pleading standard for employment discrimination suits") (internal quotations and citations omitted); Forbes, 259 F. Supp.2d at 234 (stating that at the pleadings stage, a hostile work environment complaint need only "allege facts, which give fair notice of her claim and the grounds upon which it rests") (citation omitted);Wait v. Beck's N. Am., Inc., 241 F. Supp.2d 172, 179 (N.D.N.Y. 2003) ("[O]n a motion to dismiss, a plaintiff need not lay bare her proof or demonstrate a prima facie case of a hostile work environment . . . [the] plaintiff need only give defendant fair notice of what her claims are and the grounds upon which they rest. . . .") (internal quotations and citations omitted); Pagan v. N.Y. State Div. of Parole, 2002 WL 398682, *4 (S.D.N.Y. Mar. 13, 2002) (stating that Title VII complaint alleging racially-motivated hostile work environment must plead only "a short and plain statement" and that a complaint is sufficient to survive a motion to dismiss when it gives "fair notice of what the [plaintiff's] claims are and the ground upon which they rest") (citations omitted).
The facts as alleged here sufficiently give the Defendants fair notice of what the Plaintiff's claims are and the grounds upon which they rest. The Complaint alleges at least five specific instances of racially derogatory remarks being directed at the Plaintiff by the shift managers at Pizza Hut. See "Factual Averments," supra pp. 3-4. In addition, the Complaint alleges that both shift managers continuously made such remarks throughout the course of her two month employment. See, e.g., Compl. ¶ 10 ("Racially derogatory comments from Mr. Esleger directed toward the Plaintiff continued through the month of December, 2001. . . ."); id. ¶ 11 (Mr. Haskey . . . continued to use racially derogatory and offensive remarks. . . ."). The Complaint concludes that this conduct created "a racially charged and oppressive work atmosphere and permitted that atmosphere to continue until the Plaintiff was forced to leave the workplace." See Count I. Though this conduct may inevitably prove insufficiently "severe or pervasive" to constitute a hostile work environment, for the purposes of a Rule 12(b)(6) motion, it is enough.
The court's conclusion is consistent with the decisions of other district courts, which have uniformly refused to dismiss hostile work environment claims under Title VII at the 12(b)(6) stage based on the alleged failure to show a sufficiently "severe or pervasive" conduct. See, e.g., Salerno v. CUNY, 90 F.E.P. Cases 1116, 1119 (S.D.N.Y. Dec. 19, 2002) (denying defendants' motion to dismiss, stating "[t]he booring, unseemly, or illegal behavior outline in the cases cited by defendants is not a legal requirement of a hostile work environment claim, and certainly does not have to be demonstrated to survive a motion to dismiss"); Pagan, 2002 WL 398682 at *4-*5 (denying defendant's motion to dismiss racially-motivated hostile work environment claim, finding that plaintiff's allegations of three discriminatory remarks, including calling the plaintiff "'a spic' and a 'fat Puerto Rican' and making disparaging comments about his attire[,] . . . clearly suffice to meet the limited pleading requirements imposed by [the Federal Rules of Civil Procedure]"); see also, e.g., Forbes, 259 F. Supp.2d at 232 (denying motion to dismiss hostile work environment claim); Wait, 421 F. Supp.2d at 179 (denying same).
The resistance of district courts to dismiss claims at the 12(b)(6) stage makes good sense in light of the fact that the determination of what constitutes "severe or pervasive" does not lend itself to a "mathematically precise test," but instead requires that a court look to the totality of circumstances See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23-24 (1993). This inquiry is necessarily fact-intensive; thus, summary judgment provides a more appropriate vehicle to resolve these issues, as the parties at that stage have had an opportunity to conduct discovery and develop their claims. See Grillo v. John Alden Life Ins. Co., 939 F. Supp. 685, 687-88 (D. Minn. 1996) ("This court cannot determine whether Title VII . . . provides a remedy [at the 12(b)(6) stage] without the benefit of [a] fully-developed factual record on which to base a decision . . . it is obviously premature to accept defendant's contention that any harassment suffered by plaintiff was insufficiently 'severe or pervasive' to be actionable.") (citations omitted).
The undersigned finds the decision by the United States Court of Appeals for the First Circuit ("the First Circuit") in Gorski instructive in this regard. See Gorski, 290 F.3d at 466. In that case, the district court had granted the defendant's motion to dismiss a hostile work environment claim based on alleged sexual harassment. Id. at 474. The First Circuit reversed, holding that the plaintiff had sufficiently stated a claim under Title VII. In reprimanding the district court for indulging in the type of qualitative assessments at the 12(b)(6) stage — as the Defendants now ask this court to do — it stated:
In determining that [the plaintiff] had not sufficiently stated a claim for sex discrimination by reason of a hostile work environment, the district court focused on the specific instances of harassing comments alleged in the complaint and concluded that, assuming the allegations to be true, the comments did not add up to "conduct [that was] 'extreme' enough to alter the terms and conditions of employment." This was error because the district court's resolution implicitly measured the complaint against a stricter standard of pleading than is required. In undertaking to assess how "extreme" the complained of conduct was, the district court was not determining whether the complaint adequately had alleged the elements of a hostile work environment claim, but rather was performing an evaluative judgment, usually left to the trier of fact, as to whether the hostility or harassment that was alleged was sufficiently severe or pervasive enough to warrant relief. . . .
. . . .
. . . It is not necessary at [the 12(b)(6) stage] to decide whether the plaintiff could sustain a hostile work environment claim if the factual evidence she could marshal at trial were limited to the facts alleged in the amended complaint. We do observe, however, that proof of such a claim is highly fact specific. . . . Subject to some policing at the outer bounds, that question is commonly one of degree — both as to severity and pervasiveness — to be resolved by the trier of fact on the basis of inferences drawn from a broad array of circumstantial and often conflicting evidence.Id. at 473-74 (internal citations omitted).
The cases that the Defendants rely upon to support its motion do not affect the court's analysis in this instance. See, e.g.,Nicole K. v. Upper Perkiomen Sch. Dist., 964 F. Supp. 931 (E.D. Pa. 1997); Harley v. McCoach, 928 F. Supp. 533 (E.D. Pa. 1999);Francis v. Chem. Banking Corp., 62 F. Supp.2d 948 (E.D. N.Y. 1999). First, Harley and Francis were both decided at the summary judgment phase, after the parties had an opportunity to conduct discovery; thus, they are not controlling here. See Harley, 928 F. Supp. at 533; Francis, 62 F. Supp.2d at 948. Second, althoughNicole K., 964 F. Supp. at 931, was decided at the 12(b)(6) stage, the court believes that allegations outlined here are sufficiently more severe than those alleged in that case. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 571 (2d Cir. 2002) (stating "no single act can more quickly 'alter the conditions of employment and create an abusive working environment' than the use of an unambiguously racial epithet such as 'nigger' by a supervisor in the presence of his subordinates") (citations omitted).
In sum, the undersigned concludes that the Plaintiff has sufficiently alleged conduct to state a claim for a hostile work environment under Title VII, Section 1981, and the PHRA. Therefore, it is recommended that the District Court deny the Defendants' Motion without prejudice. 2. The Plaintiff Has Failed to State a Claim for IIED.
The undersigned notes that Defendants raise a second argument — specifically, they claim that because Pizza Hut "acted promptly and effectively to stop the allegedly harassing conduct" the Complaint must be dismissed. See Defs.' Mem. at 4-5. Although the Defendants have correctly cited the Third Circuit's decision inBouton v. BMW of North Am., Inc., 29 F.3d 103, 110 (3d Cir. 1994) ("[A]n effective grievance procedure — one that is known to the victim and that timely stops the harassment — shields the employer from Title VII liability for a hostile environment."), the factual record must be further developed before the court is able to rule on both the existence and efficacy of such procedures. Thus, for the reasons stated above, the undersigned also recommends that the Defendants' Motion be denied in this regard.
The undersigned assumes for the purpose of reviewing this motion that Pennsylvania state law would govern the Plaintiff's IIED claim.
The Defendants next argue that the Plaintiff's IIED claim should be dismissed for two reasons: 1) her allegations do not manifest the required level of "outrageousness" to state such a claim; and 2) it is barred by the exclusivity provisions of the Pennsylvania's Worker's Compensation Act ("WCA"), 77 P.S. § 481. See Defs.' Mem. at 6-8.
The Plaintiff responds that "motive and context is an important aspect of an [IIED] case"; therefore, the court, "at this stage, simply does not have the evidence before it to make a determination on this issue. See Pl.'s Br. at 5. In addition, the Plaintiff maintains that her claim is not barred by the WCA. See id. at 5-6.
For the reasons stated below, the undersigned concludes that the Plaintiff has failed to state a claim for IIED. Accordingly, the court need not address the parties' arguments regarding whether the WCA provides the exclusive remedy for such claims.
In Pennsylvania, to state a claim for IIED, a plaintiff must show "extreme and outrageous conduct that is deliberate or reckless and causes severe emotional distress." See Fugarino v. Univ. Servs., 123 F. Supp.2d 838, 844 (E.D. Pa. 2000) (citing Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1998)). The conduct alleged must be "so outrageous, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." See id. (citations to the Third Circuit and Pennsylvania Superior Court omitted).
The Third Circuit has noted that it is "extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of [IIED]." See Cox v. Keystone Carbon Co., 861 F.2d at 395. Further, in those uncommon instances where the courts have found outrageous conduct, it is almost exclusively in the area of claims based on sexual harassment. See id.
Viewing the allegations in the light most favorable to the Plaintiff, the conduct complained of in this instance — while reprehensible — does not rise to the level of actionable outrageous conduct necessary to state a claim for IIED. See Coney v. Pepsi Cola Bottling Co., 1997 WL 299434, *1 (E.D. Pa. May 29, 1997) (observing that District courts in Pennsylvania, applying Pennsylvania law, have consistently held that "highly provocative racial slurs and other discriminatory incidents do not amount to actionable conduct"); see also, e.g., EEOC v. Victoria's Secret Stores, Inc., 2003 WL 21282193, *1 (E.D. Pa. Jan. 13, 2003) (holding that plaintiff failed to state a claim for IIED under the "stringent test as it has been applied under Pennsylvania law," finding that allegations that intervener was subjected to hostile work environment and racially offensive remarks were insufficient to constitute "outrageous" conduct);Fleming v. Kramont Employer Royce Realty, Inc., 2002 WL 1964257, *5 (E.D. Pa. Aug. 16, 2002) (granting defendants' motion to dismiss for failure to state a claim where plaintiff alleged hostile work environment based upon race, sex, and retaliation); Coney, 1997 WL 299434 at *1 (granting motion to dismiss IIED based on allegations that employer made racially derogatory remarks, including "you all aren't happy unless you're working up a sweat" and "you all are built for bulk"); Hampton v. Tokai Fin. Servs. Inc., 1999 WL 83934, *3 (E.D. Pa. Feb. 18, 1999) (granting motion to dismiss IIED claim, finding allegations of racial discrimination and retaliatory discharge were insufficient to state a claim for IIED); Richardson v. Arco Chem. Co., 1996 WL 482911, *6 (E.D. Pa. Aug. 26, 1996) (holding that allegedly racially hostile work environment where defendant "made pejorative remarks and told racist jokes about African Americans in [plaintiff's] presence" did not amount to actionable outrageous conduct); Parker v. PDCE, 1992 WL 501273, *12, *14 (E.D. Pa. Nov. 4, 1992) (holding that allegations that the defendants stated they "would never pay a nigger $75,000 a year" and referred to plaintiff as a "token nigger" and "stupid nigger" when taken "in their entirety . . . do not rise to the level of outrageousness required under the law of Pennsylvania").
The Plaintiff's contention that the court should postpone its disposition of the IIED claim until the summary judgment phase is unavailing here. See Pl.'s Br. at 4. Notwithstanding the court's analysis of the Plaintiff's Title VII claim above, a court may dismiss an IIED claim at the 12(b)(6) stage. See, e.g.,Victoria's Secret Stores, Inc., 2003 WL 21282193 at *1 (stating "the court must preliminarily determine whether the conduct alleged is so outrageous and extreme as to permit recovery"). In fact, most of the cases cited above were decided at the pleading stage as a matter of law. See cased cited supra, pp. 15-16.
The Plaintiff cites only one decision to support its argument,Bowersox v. P.H. Glatfelter Co., 677 F. Supp. 307, 311 (M.D. Pa. 1988). See Pl.'s Br. at 4. That case involved a sexual harassment claim where the plaintiff had specifically alleged — in addition to repeated and continuous sexual innuendos directed at the plaintiff — that the defendant withheld information from the plaintiff that she needed to perform her job, forbade her to talk to anyone in the office, prohibited her from answering the phone, refused to talk to her, and followed her throughout the plant. See id. at 311-12. Not surprisingly, the court found that this conduct was sufficiently "outrageous" as to state a claim for IIED, and accordingly denied the defendant's motion to dismiss. See id. at 312. The undersigned does not believe that the Plaintiff's allegations here rise to the level of those outlined in Boxersox. In addition, as stated above, the Third Circuit has noted that sexual harassment and retaliation claims are more likely to state a claim for IIED than racial discrimination claims. See Cox v. Keystone Carbon Co., 861 F.2d at 395. The undersigned therefore finds thatBowersox has no bearing on the court's analysis, and chooses not to follow it.
For these reasons, the undersigned recommends that the District Court grant the Defendants' Motion as pertains to the Plaintiff's IIED claim for failure to state a claim upon which relief can be granted.
III. CONCLUSION
For the reasons stated above, it is recommended that the District Court: (1) deny the Defendants' Motion as it relates to Plaintiff's claims under Title VII, Section 1981, and the PHRA; and (2) grant the Defendants' Motion as it relates to the Plaintiff's IIED claim.
In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, objections to this report and recommendation are due by November 21, 2003. Response to objections are due by December 1, 2003.