Dobson v. The Milton Hershey School And School Trust et al

REPLY BRIEF re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AMENDED COMPLAINT COUNTS V, VII, VIII, IX, X, XI AND XII

M.D. Pa.December 1, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ADAM DOBSON, Plaintiff, vs. THE MILTON HERSHEY SCHOOL, et al., Defendants. : : : : : : : : : C.A. No. 1:16-cv-01958 (Hon. John. E. Jones III) DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Thomas B. Schmidt, III (PA 19196) Justin G. Weber (PA 89266) Simoné L. Delerme (PA 317120) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238.0575 (fax) schmidtt@pepperlaw.com weberjg@pepperlaw.com delermes@pepperlaw.com Attorneys for Defendants Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 1 of 16 -i- TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES .................................................................................... ii I. INTRODUCTION .......................................................................................... 1 II. ARGUMENT .................................................................................................. 2 A. Plaintiff’s Response Confirms That His Claims Are Based On His Enrollment, Which Is A Contractual Relationship. ....................... 2 B. Plaintiff’s Response Confirms That There Are No Facts Alleging That Any “Misrepresentation” Was Made With An Intent To Mislead Nor Any Facts Showing Plausible Reliance. ......... 7 C. Plaintiff Confirms He Has Failed To Plead Any Facts Showing Physical Harm Or Allege Any “Extreme Or Outrageous” Conduct To Support His Intentional Infliction Of Emotional Distress Claim ...................................................................................... 8 III. CONCLUSION ............................................................................................. 10 Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 2 of 16 -ii- TABLE OF AUTHORITIES Page(s) CASES Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990) ........................................ 10 Castellucci v. Harcum Coll., 2016 U.S. Dist. LEXIS 58454 (E.D. Pa. May 2, 2016) ....................................................................................................... 10 Developers Sur. & Indem. Co. v. Mathias, 2013 U.S. Dist. LEXIS 173973 (M.D. Pa. Dec. 11, 2013) ......................................................................... 7 K.A., a minor, v. Upper Perkiomen Sch. Dist., 2012 U.S. Dist. LEXIS 86073 (E.D. Pa. Mar. 12, 2012) ........................................................................... 4 Kazatsky v. King David Mem’l Park, 527 A.2d 988 (Pa. 1987) ................................ 8 Kimberg v. Univ. of Scranton, 411 Fed. Appx. 473 (3d Cir. 2010) .......................... 4 Kleinknecht v. Gettysburg Coll., 989 F.2d 1360 (3d Cir. 1993) ............................ 4, 5 Love v. Cramer, 606 A.2d 1175 (Pa. Super. 1992) ................................................... 9 M.S. v. Susquehanna Twp. Sch. Dist., 43 F.Supp. 3d 412 (M.D. Pa. 2014) ..................................................................................................................... 9 Messer v. First Fin. Fed. Credit Union, 2012 U.S. Dist. LEXIS 105997 (E.D. Pa. July 30, 2012) ........................................................................... 9 Michael v. Shiley, Inc., 46 F.3d 1316 (3d Cir. 1995) ................................................. 7 Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000) ........................................................... 4 Reardon v. Allegheny Coll., 926 A.2d 477 (Pa. Super. 2007) ............................... 4, 7 Rementer v. Kellogg Co., 2015 U.S. Dist. LEXIS 133700 (E.D. Pa. Oct. 1, 2015) ....................................................................................................... 10 Rudas v. Nationwide Mut. Ins. Co., 1997 U.S. Dist. LEXIS 169 (E.D. Pa. Jan. 10, 1997) .................................................................................................. 9 Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999) ............................................... 4 Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 3 of 16 Page(s) -iii- Walkup v. Santander Bank, N.A., 147 F. Supp. 3d 349 (E.D. Pa. 2015) ................... 8 Woodward v. Dietrich, 548 A.2d 301 (Pa. Super. 1988) ........................................... 8 Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 4 of 16 -1- I. INTRODUCTION Plaintiff’s response to the motion to dismiss his Amended Complaint confirms that his purported tort claims are based on his enrollment at the School, and that his alleged damages are the result of the termination of his enrollment. These claims are based on a contractual relationship. Plaintiff does not identify any cases allowing claims arising from a student’s enrollment at a private school, or claims regarding termination of that enrollment, to be repackaged as tort claims. Instead, Plaintiff’s response confirms that a contractual relationship - his enrollment at Milton Hershey School - is the source of the tort duties he alleges. The “gist of the action” doctrine specifically precludes tort claims where, as here, the source of the duty is a contract. Even if Plaintiff’s asserted tort claims were not based on contractual duties and barred by the “gist of the action” doctrine, Plaintiff’s response confirms that he has failed to state claims for misrepresentation (he does not contest that he fails to plead any facts that there was an intent to mislead him) and intentional infliction of emotional distress (he does not plead any facts regarding physical injury). As a result, his misrepresentation and intentional infliction of emotional distress claims should be dismissed. Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 5 of 16 -2- II. ARGUMENT A. Plaintiff’s Response Confirms That His Claims Are Based On His Enrollment, Which Is A Contractual Relationship. Plaintiff’s response confirms that his tort claims are based on his enrollment at the School.1 Indeed, it reconfirms that his enrollment creates and defines his claims. Specifically, Plaintiff highlights that the wrongful conduct he complains about involves the School’s: • “expelling [Plaintiff]”; • “acting to negligently or deliberately terminate [Plaintiff’s] enrollment,” which he alleges caused him a variety of alleged damages; • “declining to use its resources to address his condition.” Pl.’s Resp. to Defs.’ Mot. to Dismiss, p. 10. Although Plaintiff asserts a variety of claims, they all derive from the School’s “decision to expel him,” and his expulsion “at the time of his greatest need.” Id. at 9, 11. Moreover, while Plaintiff’s Amended Complaint eliminated his original breach of contract claim, it retained the core allegations that delineated his relationship with the School. He still refers to the “promises” or “directives” that 1 Plaintiff’s Response to Defendants’ Motion to Dismiss (ECF No. 24) shall be cited as “Pl.’s Resp. to Defs.’ Mot. to Dismiss.” Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 6 of 16 -3- he asserted created the contracts. Plaintiff states, for example, that “[t]he Handbook, the Equal Opportunity Policy, and the ADA Settlement Agreement are [the School]’s own directives…,” Pl.’s Resp. to Defs.’ Mot. to Dismiss, p. 10; “[t]his conduct was contrary to directives on MHS…, ” Pl.’s Resp. to Defs.’ Mot. to Dismiss, p. 2; and “[d]espite the promise made and stated intentions of the School in the ADA Settlement Agreement and Equal Opportunity Policy, the Defendants have failed to follow their own directives….” AC ¶ 54.2 Plaintiff’s attempt to create a tort duty by asserting an in loco parentis relationship does not change the contractual nature of the private school-student relationship. Instead, it only confirms that the source of the duty he alleges is a contractual relationship - Plaintiff’s enrollment at the School. Simply put, Plaintiff argues that it is the contractual relationship, his enrollment at the School, that creates a tort duty. He claims that this duty was breached when the contractual relationship - his enrollment - was terminated and he no longer received the School’s services. 2 Plaintiff argues “it would be impossible for [the School] and [Plaintiff] to agree as a matter of contract that [Plaintiff] would not face any discrimination on the basis of his psychiatric disability. Violation of these policies is by its very nature tortious.” Pl.’s Resp. to Defs.’ Mot. to Dismiss, p. 11. A “discrimination” claim would be based on statute and not common law tort. And, at this time, Defendants have not moved to dismiss Plaintiff’s statutory claims. Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 7 of 16 -4- “[T]he relationship between a private educational institution and an enrolled student is contractual in nature.” Kimberg v. Univ. of Scranton, 411 Fed. Appx. 473 (3d Cir. 2010) quoting Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. 1999). The contract between the parties “is comprised of the written guidelines, policies, and procedures as contained in the written materials distributed to the student over the course of their enrollment in the institution.” Id. The “gist of the action” doctrine is applied to enrollment claims and is not limited to certain cases as Plaintiff suggests in his response. See Reardon v. Allegheny Coll., 926 A.2d 477 (Pa. Super. 2007); Pl.’s Resp. to Defs.’ Mot. to Dismiss, p. 10. Plaintiff does not cite a single case that allows a student to create tort claims from the contractual relationship between a student and a private school. None of the cases that Plaintiff cites even involves enrollment-related claims. K.A., a minor, v. Upper Perkiomen Sch. Dist., 2012 U.S. Dist. LEXIS 86073 (E.D. Pa. Mar. 12, 2012) (holding that endangering welfare of child claim was properly pled against public school based on allegation that teacher sexually abused student); Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000) (discussing duty in state- regulated foster care under federal law in context of New Jersey Department of Human Services); Kleinknecht v. Gettysburg Coll., 989 F.2d 1360 (3d Cir. 1993) (holding that a college owes a duty to a student athlete to provide preventative measures during college-sponsored athletic activities). Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 8 of 16 -5- Plaintiff relies on Kleinknecht v. Gettysburg College for the broad proposition that a special relationship exists between a school and a student that creates a duty cognizable in tort. Pl.’s Resp. to Defs.’ Mot. to Dismiss, p. 6. The decision does not support such a broad principle. Kleinknecht involved a medical emergency during an athletic event where a student-athlete suffered a cardiac arrest. 989 F.2d at 1362. The Third Circuit was careful to narrowly apply a tort duty to a medical emergency regarding an intercollegiate athlete: “Our holding is narrow. It predicts only that a court applying Pennsylvania law would conclude that the College has a duty to provide prompt and adequate emergency medical services to [] one of its intercollegiate athletes, while he was engaged in a school- sponsored athletic activity for which he had been recruited.” Id. at 1371 (emphasis added). Plaintiff’s reliance on Kleinknecht to create duties arising generally from a student’s enrollment is unfounded. Kleinknecht did not involve claims regarding a student’s enrollment, or the termination of that enrollment. At no time in Kleinknecht did the court indicate, or even imply, a change in the law regarding the contractual nature of enrollment-related claims. See id. Whether Plaintiff seeks to cast his tort claims as negligence, misrepresentation, infliction of emotional distress, breach of fiduciary duty, or conspiracy, they are all claims based on his enrollment or statements made in the Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 9 of 16 -6- documents that he alleged served as contracts. Specifically, for his breach of fiduciary duty claim, he confirms that it is his enrollment that creates the alleged “fiduciary” duty. Pl.’s Resp. to Defs.’ Mot. to Dismiss, p. 17 (confirming that breach of fiduciary duty claim is about when the School could “expel” students and that the School defined the scope of its duty through “policy documents”). Plaintiff claims that a fiduciary duty created by his enrollment precludes the School from terminating enrollment (or otherwise determines when it can be terminated). Id. The misrepresentation, infliction of emotional distress, and conspiracy claims are no different. Id. at p.18 (confirming that additional tort claims are, similar to his negligence claim, based on the relationship between the private school and student). Plaintiff does not contest that his “misrepresentation” claims are based on the statements in the contracts that he alleged. Id.; Compare Doc. 1, Complaint, Count IV, with AC ¶ 187-205. Moreover, Plaintiff confirms that his infliction of emotional distress and conspiracy claims, like his negligence claim, are based on an alleged tort duty created by his enrollment. Pl.’s Resp. to Defs.’ Mot. to Dismiss, p. 18. The fact that Plaintiff alleges that he suffered a variety of damages (embarrassment, loss of self-esteem, etc.) from the termination of his enrollment does not change the genesis of the duty - his enrollment at the School. Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 10 of 16 -7- Because Plaintiff effectively acknowledges that his tort claims are based on his enrollment at the School and the termination of his enrollment, Plaintiff’s tort claims must be dismissed under the “gist of the action” doctrine. Reardon, 926 A.2d 477 (applying the “gist of the action” doctrine to a student’s tort claims arising from his termination from the school). B. Plaintiff’s Response Confirms That There Are No Facts Alleging That Any “Misrepresentation” Was Made With An Intent To Mislead Nor Any Facts Showing Plausible Reliance. Plaintiff’s claims for negligent and intentional misrepresentation also fail because there are no facts alleged that the School intended to mislead Plaintiff or that he plausibly relied upon any factual representations. Claims for intentional and negligent misrepresentation require Plaintiff to plead facts that show Defendants intended to mislead him. Developers Sur. & Indem. Co. v. Mathias, 2013 U.S. Dist. LEXIS 173973 (M.D. Pa. Dec. 11, 2013). Plaintiff does not even argue that he has adequately alleged any facts to show that Defendants intended to mislead him. As a result, Plaintiff’s claims for intentional and negligent misrepresentation must be dismissed. Id. (dismissing claims for intentional and negligent misrepresentation where plaintiff failed to make the required factual showing). Moreover, to rely on a misrepresentation, a plaintiff must “act or refrain from action.” Michael v. Shiley, Inc., 46 F.3d 1316, 1334 (3d Cir. 1995); Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 11 of 16 -8- Woodward v. Dietrich, 548 A.2d 301 (Pa. Super. 1988). Plaintiff does not allege any plausible facts that he took action or that he refrained from taking any action in reliance on communications by Defendants. Plaintiff grasps at “reliance” strings when he states that he “agreed to be institutionalized for a second time at Philhaven under the belief that it would be critical to his success at [the School]….” Pl.’s Resp. to Defs.’ Mot. to Dismiss, p. 19. He argues that his reliance is that he was lulled into a false sense of security that he would remain at the School as a productive member. Pl.’s Resp. to Defs.’ Mot. to Dismiss, p. 20. Plaintiff’s argument appears to be that his reliance was that he agreed to obtain medical treatment that he otherwise would not have agreed to do. Even if Plaintiff pled facts to show that there was an intent to mislead him (which he has not), this is not plausible showing of reliance to support a claim. See Walkup v. Santander Bank, N.A., 147 F. Supp. 3d 349, 362 (E.D. Pa. 2015) (dismissing claim where plaintiffs failed to provide a factually plausible account of reliance). C. Plaintiff Confirms He Has Failed To Plead Any Facts Showing Physical Harm Or Allege Any “Extreme Or Outrageous” Conduct To Support His Intentional Infliction Of Emotional Distress Claim Plaintiff’s response confirms that he has failed to allege any facts showing physical injury, a required element to maintain a claim for intentional infliction of emotional distress. See Kazatsky v. King David Mem’l Park, 527 A.2d 988, 995 (Pa. 1987). Instead of pointing to any facts showing physical harm, Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 12 of 16 -9- Plaintiff simply refers to his conclusory allegations of “physical harm” and “physical manifestations of emotional distress.” Conclusory allegations of “physical harm” are insufficient to survive a motion to dismiss. M.S. v. Susquehanna Twp. Sch. Dist., 43 F.Supp. 3d 412, 430- 31 (M.D. Pa. 2014); Messer v. First Fin. Fed. Credit Union, 2012 U.S. Dist. LEXIS 105997, at *17 (E.D. Pa. July 30, 2012) (granting motion to dismiss because allegations of “severe emotional distress” and “extreme stress, anxiety, mental anguish, [and] embarrassment” were inadequate to state a claim for intentional infliction of emotional distress). Plaintiff does not allege any facts that indicate a physical injury or “severe emotional distress” beyond mere conclusory allegations. Indeed, even if the labels that he picks from Love v. Cramer, 606 A.2d 1175, 1179 (Pa. Super. 1992), were sufficient to show physical injury, his allegations do not match those in Love. As a result, Plaintiff’s allegations are insufficient to state a claim for intentional infliction of emotional distress and his claim should be dismissed. Rudas v. Nationwide Mut. Ins. Co., 1997 U.S. Dist. LEXIS 169 (E.D. Pa. Jan. 10, 1997) (dismissing claim for intentional infliction of emotional distress where the plaintiff had not alleged physical injury). Moreover, Plaintiff cites no case law that supports his contention that “common sense” may be used to determine that Defendants’ alleged conduct was “extreme or outrageous” behavior. Pl.’s Resp. to Defs.’ Mot. to Dismiss, p. 21. Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 13 of 16 -10- This is not the standard in Pennsylvania. In fact, intentional conduct that is tortious or even criminal does not suffice. For example, “as a general rule, sexual harassment alone does not rise to the level of outrageousness necessary to make out a cause of action for intentional infliction of emotional distress.” Andrews v. City of Phila., 895 F.2d 1469, 1487 (3d Cir. 1990); Rementer v. Kellogg Co., 2015 U.S. Dist. LEXIS 133700 (E.D. Pa. Oct. 1, 2015). Where the facts alleged do not amount to “extreme or outrageous” behavior, the court should dismiss an intentional infliction of emotional distress claim. Castellucci v. Harcum Coll., 2016 U.S. Dist. LEXIS 58454, at *8 (E.D. Pa. May 2, 2016). III. CONCLUSION Plaintiff’s Response to Defendants’ Motion to Dismiss confirms that his claims concern his enrollment at the School and whether it was properly terminated. Plaintiff alleges that it was not and that he was damaged as a result. This is not a tort claim. It is a claim based on the contractual relationship between a private school and its student. Plaintiff cannot use the contractual relationship created by his enrollment at the School as the source of a tort duty and his tort claims should be dismissed based on the “gist of the action” doctrine. Additionally, because Plaintiff has not pled facts to show that he is entitled to relief on misrepresentation and intentional infliction of emotional distress claims, those claims should also be dismissed. Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 14 of 16 -11- Respectfully submitted, s/ Justin G. Weber Thomas B. Schmidt, III (PA 19196) Justin G. Weber (PA 89266) Simoné L. Delerme (PA 317120) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238.0575 (fax) schmidtt@pepperlaw.com weberjg@pepperlaw.com delermes@pepperlaw.com Dated: December 1, 2016 Attorneys for Defendants Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 15 of 16 CERTIFICATE OF SERVICE I hereby certify that on December 1, 2016, I electronically filed the foregoing Defendants’ Response in Support of Their Motion to Dismiss Plaintiff’s Amended Complaint which will send notification of such filing to counsel of record for all parties. s/ Justin G. Weber Justin G. Weber (PA 89266) Case 1:16-cv-01958-JEJ Document 29 Filed 12/01/16 Page 16 of 16 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ADAM DOBSON, Plaintiff, vs. THE MILTON HERSHEY SCHOOL, et al., Defendants. : : : : : : : : : C.A. No. 1:16-cv-01958 (Hon. John E. Johns, III) UNREPORTED CASES CITED IN DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT K.A., a minor, v. Upper Perkiomen Sch. Dist., 2012 U.S. Dist. LEXIS 86073 (E.D. Pa. Mar. 12, 2012) Messer v. First Fin. Credit Union, 2012 U.S. Dist. LEXIS 105997 (E.D. Pa. July 10, 2012) Rementer v. Kellogg Co., 2015 U.S. Dist. LEXIS 133700 (E.D. Pa. Oct. 1, 2015) Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 1 of 23 K.A. v. Upper Perkiomen Sch. Dist. United States District Court for the Eastern District of Pennsylvania March 12, 2012, Decided; March 12, 2012, Filed Civil Action No. 11-2610 Reporter 2012 U.S. Dist. LEXIS 86073 *; 2012 WL 2362565 K.A. a minor, by her guardians and natural parents JENNIFER ALLEBACH and BRIAN ALLEBACH v. UPPER PERKIOMEN SCHOOL DISTRICT, et al. Subsequent History: Approved by, Adopted by, Motion denied by, in part, Count dismissed at K.A. v. Upper Perkiomen Sch. Dist., 2012 U.S. Dist. LEXIS 86072 (E.D. Pa., June 21, 2012) Counsel: [*1] For K.A., A MINOR, BY HER GUARDIANS AND NATURAL PARENTS, JENNIFER ALLEBACH, BRIAN ALLEBACH, Plaintiffs: STEVEN F. MARINO, LEAD ATTORNEY, MARINO & ASSOCIATES PC, PHILADELPHIA, PA. For UPPER PERKIOMEN SCHOOL DISTRICT, DUANE WICKARD, IN HIS INDIVIDUAL CAPACITY AND AS AN AGENT OF THE UPPER PERKIOMEN SCHOOL DISTRICT EDUCATION CENTER, ARTHUR VIGILANTE, IN HIS INDIVIDUAL CAPACITY AND AS AN AGENT OF THE UPPER PERKIOMEN SCHOOL DISTRICT EDUCATION CENTER, TIMOTHY KIRBY, PH.D., IN HIS INDIVIDUAL CAPACITY AND AS AGENT OF THE UPPER PERKIOMEN SCHOOL DISTRICT EDUCATION CENTER, Defendants: JOSEPH P. CONNOR, CONNOR WEBER & OBERLIES, PC, PAOLI, PA; STEVEN M. LIERO, CONNOR WEBER & OBERLIES, PAOLI, PA. Judges: M. FAITH ANGELL, UNITED STATES MAGISTRATE JUDGE. Opinion by: M. FAITH ANGELL Opinion REPORT AND RECOMMENDATION M. FAITH ANGELL UNITED STATES MAGISTRATE JUDGE Presently before this Court is Defendant's Motion to Dismiss Counts V through XVI of the Plaintiffs' Complaint. For the reasons which follow, it is recommended that the Motion to Dismiss be DENIED for counts V, VI, VII, VIII, IX, and X, and GRANTED for counts XI, XII, XIII, XIV, XV, and XVI. I. Background This case involves the alleged sexual abuse of a minor, K.A., by her teacher, [*2] Brian Miller, while K.A. attended Upper Perkiomen Middle School. Plaintiffs allege that K.A.'s music teacher, Mr. Miller, established a pattern of "inappropriate, immoral and sexual conduct" with K.A beginning in 2005. 1 The alleged inappropriate conduct consisted of sexually charged electronic messages as well as direct sexual interaction. 2 The alleged 1 Pls.'s Compl. ¶ 24. 2 See Pls.'s Compl. ¶¶ 25-35 (describing alleged conduct ranging from sexually charged text messages to the physically touching of Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 2 of 23 Page 2 of 22 K.A. v. Upper Perkiomen Sch. Dist. behavior persisted until discovered by K.A.'s family members in March of 2009. 3 Plaintiffs further alleges that Duane Wickard, the school's acting Principal, Arthur Vigilante, the school's acting assistant Principal, and Timothy Kirby, the school district's acting superintendant, knew, or should have known, of the alleged sexual conduct between Miller and K.A., and that they failed to act in sufficient time to prevent injuries to the child. 4 Plaintiff initiated the instant case on April 15, 2011. On June 23, 2011, Defendants filed their Motion to Dismiss Counts V through XVI of the Plaintiff's Complaint. [*3] Plaintiff does not contest the Motion with regards to Counts XI, XII, XIII, XIV, XV, and XVI and those counts are not discussed below. 5 II. Discussion A. Standard The purpose of a 12(b)(6) motion to dismiss is to test the legal sufficiency of the claims, not the merits. Nelson v. Temple Univ., 920 F. Supp. 633 (E.D. Pa. 1996). To survive a motion to dismiss, plaintiff must allege sufficient facts that, if accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009). A claim has facial plausibility when a plaintiff pleads facts that allow the court to draw the reasonable inference that the defendant may be liable for the misconduct alleged. Id. at 1949. However, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S.Ct. at 1950 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2009)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). It is on these standards that this Court has reviewed the the student's breasts and vaginal area). 3 Pls.'s Compl. ¶ 38. 4 Pls.'s Compl. ¶¶ 42-57. 5 See Pls.'s Resp. 1. Defendants' Motion. B. State Claims - Endangering the Welfare of a Child and Failure to Supervise It is a general rule of tort law that [*4] one does not have an affirmative duty to rescue and that such a duty can only be created by the existence of a special relationship. E.g., Brown v. Dep't of Emergency Med. Servs. Training Inst., 318 F.3d 473, 477 (3d Cir. 2003); accord Restatement (Second) of Torts § 314. Such a duty may arise from common law, statute, or contract. Emerson v. Adult Cmty. Total Servs., Inc., 842 F. Supp. 152, 155 (E.D. Pa. 1994). Where a duty does exist, one may face liability for a failure to take action. See, e.g., Simmons v. City of Phila., 947 F.2d 1042, 1083-84 (3d Cir. 1991)(interpreting common law to require jail authorities who know or should know that a prisoner, unless forestalled, is likely to harm himself, must exercise reasonable care to ensure that the harm does not occur). Plaintiffs contend that their endangering the welfare of a child and failure to supervise counts are supported by the Restatement (Second) of Torts §§ 314A(4) 6 and 324A 7 as adopted in Pennsylvania. 8 6 The pertinent [*5] section states: (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other. 7 Section 324A states: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 3 of 23 Page 3 of 22 K.A. v. Upper Perkiomen Sch. Dist. Pleadings require no technical form and the title of a cause of action does not solely control. E.g., F.R.C.P. 8(d)(1). Most relevant are the contents of the complaint and the substantive allegations made. Plaintiffs have provided sufficient support in their complaint to state a cause of action under sections 314A and 324A. Plaintiffs have alleged that the school district, through its employees, knew and had the opportunity to intervene on behalf of K.A., but did not do so in breach of duty of reasonable care. 9 The facts as pled provide that K.A. was under the supervision and custody of the school district and that the variously pled defendants all maintained supervisory responsibilities towards K.A. throughout the district's chain of command. While Pennsylvania may not recognize a civil cause of action for endangering the welfare of a child and failure to supervise as titled in the instant case, such causes of action are in accordance with the Restatement provisions. For these reasons, drawing all reasonable inferences in favor of the Plaintiffs, a cause of action is supported for counts V, VI, VII, VIII, IX, and X. C. Political Subdivision Tort Claims Act Under The Pennsylvania Political Subdivision Tort Claims Act ("PSTCA"), government entities like the Upper Perkiomen School district, its [*7] agencies, and employees are generally immune from damages liability. The Act provides, inter alia, "no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." 42 Pa.C.S. § 8541. The general rule under 8541 is subject to several exceptions. Immunity is excepted where 8 Plaintiffs cite to Hamil v. Bashline, 481 Pa. 256, 392 A2.d 1280 (Pa. Super. 1978), for the proposition that Pennsylvania courts have adopted §324A. However, the Hamil court adopted §323 of the Restatement, a related but different Restatement section. Nonetheless, §324A has been adopted in Pennsylvania. See Farabaugh v. Pa. Turnpike Comm'n., 590 Pa. 46, 68, 911 A.2d 1264 (2006)(discussing the [*6] general acceptance of 324A). 9 Pls.'s Compl. ¶¶ 135-39; 143-47; 151-55; 159-65; 169-75; 178-85. both "(1) damages would be recoverable at common law or under a statute creating a cause of action if the injury were caused by a person not protected by immunity, and (2) the claim falls within one of the statutory exceptions to governmental immunity in Section 8542(b) of the [Tort Claims] Act." Gremo v. Karlin, 363 F. Supp. 2d 771, 793 (E.D. Pa. 2005)(alterations in original). Immunity is also excepted where, under §8550, "the act of the employee caused the injury and that such an act constitute[es] a crime, actual fraud, actual malice or willful misconduct." (emphasis added). Willful misconduct has generally been defined by the Pennsylvania Courts as synonymous with term "intentional tort." See id. at 793-94 (explaining the changes in interpretation of the term willful misconduct); accord Hayes v. Erie Cnty., 497 F. Supp. 2d 684, 705 (W.D. Pa. 2007). [*8] To qualify as willful misconduct, "[t]he governmental employee must desire to bring about the result that followed his conduct or be aware that it was substantially certain to follow." Lyons v. City of Phila., 1998 U.S. Dist. LEXIS 17281, 1998 WL 767451 (E.D. Pa. Nov. 4, 1998)(unpublished)(quoting Kuzel v. Krause, 658 A.2d 856, 859 (Pa. Commw. Ct. 1995)). In counts V through X Plaintiffs have pled both "endangering the welfare of the child" and "failure to supervise." Where these counts sound in negligence, they are excluded by the PTSCA as such conduct does not fall into the exception of §8542 or §8550. Gremo, 363 F. Supp. 2d. at 793- 794. However, Plaintiffs have not based their claims on negligence. Plaintiffs' Complaint seeks to address the alleged intentional conduct of the individual defendants. Therefore, the pertinent issue under this motion is whether the Plaintiffs have pled sufficient facts to move their cause of action into the realm of willful misconduct, i.e., intentional tort. Plaintiffs' Complaint contains adequate factual allegations to plausibly support their intentional tort claims. For defendants Mr. Wickard, Mr. Vigilante, and Dr. Kirby, the Complaint alleges that their Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 4 of 23 Page 4 of 22 K.A. v. Upper Perkiomen Sch. Dist. alleged endangerment of [*9] the welfare of a child and failure to supervise were "willful" and "intentional." 10 The Complaint further alleges that defendants "knew" or "knowingly" engaged in the alleged breaches of duty. 11 While the "mere incantation" of the term willful misconduct is not sufficient to bring a claim within the realm of intentional tort, the standard is not as stringent as argued for by the Defendants. As explained in Hayes, the specific intent requirement may be met by showing that either the actor desired to bring about the result that followed or that the result was substantially certain to follow. 497 F. Supp. 2d at 705. Under the facts as pled, the Plaintiffs have alleged that at least six employees of the school district with knowledge of the misconduct reported said conduct to school district "policy-makers" including Mr. Wickard. 12 The Complaint further alleges that Mr. Wickard communicated said misconduct up the chain of command to Mr. Vigilante and Dr. Kirby. 13 The defendants are alleged to have known, or should have known, of the inappropriate conduct between K.A. and Mr. Miller, but consciously chose not to act. 14 It is clear that the Plaintiffs have included more than a mere [*10] token inclusion of the words "willful" and "intentional" into their complaint. Given the totality of facts as pled by the Plaintiffs and drawing all reasonable inferences there from, Plaintiffs' have pled sufficient facts to fall under the PSTCA's §8550 willful misconduct exception to damages liability. D. Punitive Damages Lastly, Defendants argue that punitive damages are not allowed under the PSTCA. As concluded supra, 10 Pls.'s Compl. ¶¶ 138, 139, 146, 147, 154, 155, 164, 165, 174, 175, 184, 185. 11 See, e.g., Pls.'s Compl. ¶ 137 ("Defendant . . . Wickard knowingly endangered the welfare of plaintiff K.A. . . .)(emphasis added). 12 Pls.'s Compl. ¶¶ 43-53. 13 Pls.'s Compl. ¶ 55. 14 E.g., Pls.'s Compl. ¶ 55-56. the Plaintiffs' claims with regards to counts V, VI, VII, VIII, IX, and X are not shielded by PSTCA because the Plaintiffs pled sufficient facts to bring their claims within the PSTCA's §8550 willful misconduct exception. Punitive damages may be recoverable as permitted under §8550 and relevant tort law. See Udujih v. City of Phila., 513 F. Supp. 2d 350, 358 (E.D. Pa. 2007)(holding that punitive damages are available under the PSTCA on claims alleging commission of intentional torts by [*11] individual public employees). RECOMMENDATION For the reasons set above, it is recommended that the Motion to Dismiss be DENIED for counts V, VI, VII, VIII, IX, and X, and GRANTED for counts XI, XII, XIII, XIV, XV, and XVI. BY THE COURT: /s/ M. FAITH ANGELL M. FAITH ANGELL UNITED STATES MAGISTRATE JUDGE End of Document Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 5 of 23 Messer v. First Fin. Fed. Credit Union United States District Court for the Eastern District of Pennsylvania July 30, 2012, Decided CIVIL ACTION NO. 11-4144 Reporter 2012 U.S. Dist. LEXIS 105997 *; 2012 WL 3104397 DIANE MESSER, a/k/a DIANE M. McCUTCHEON, and CHARLES MESSER, Plaintiffs, v. FIRST FINANCIAL FEDERAL CREDIT UNION OF MARYLAND, Defendant. Counsel: [*1] For DIANE MESSER, also known as DIANE M. MCCUTCHEON, CHARLES MESSER, Plaintiffs: ROBERT P. COCCO, LEAD ATTORNEY, LAW OFFICES OF ROBERT P. COCCO PC, PHILADELPHIA, PA; MATTHEW B. WEISBERG, WEISBERG LAW PC, MORTON, PA. For FIRST FINANCIAL FCU OF MARYLAND, Defendant: CAITLIN M. PICCARELLO, LEAD ATTORNEY, SAUL EWING, LLP, PHILADELPHIA, PA; KIMBERLY A. MANUELIDES, PRO HAC VICE, SAUL EWING, LLP, PHILADELPHIA, PA. Judges: CYNTHIA M. RUFE, J. Opinion by: CYNTHIA M. RUFE Opinion MEMORANDUM OPINION RUFE, J. Plaintiffs Diane Messer and Charles Messer bring claims against Defendant First Financial Federal Credit Union of Maryland ("First Financial") for willful violation of a bankruptcy discharge injunction, violations of the Pennsylvania Fair Credit Extension Uniformity Act and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, conversion, intentional infliction of emotional distress, and loss of consortium. Before the Court is Defendant's motion to dismiss Plaintiff's Second Amended Complaint. I. FACTUAL AND PROCEDURAL BACKGROUND In 2004 and 2005, Plaintiff Diane Messer 1 entered into five separate loan agreements with Defendant First Financial, including a six-year financing agreement to purchase a Toyota Prius [*2] (the "Vehicle Loan Agreement" or "Vehicle Debt"). On April 5, 2005, Plaintiff and her former husband, Michael McCutcheon, filed a bankruptcy petition in the United States Bankruptcy Court for the District of Maryland. 2 Plaintiff's Vehicle Debt was listed therein as secured debt, 3 and three other First Financial loans-in the amounts of $4,821.23, 1 Because the facts and claims in the Second Amended Complaint ("SAC") are primarily applicable only to Diane Messer, she will be referred to hereinafter as "Plaintiff." 2 Voluntary Petition, In re Michael Scott McCutcheon and Diane M. McCutcheon, No. 05-17860 (Bankr. D. Md. Apr. 5, 2005) (Bankr. Doc. No. 1). A court may take judicial notice of documents from a bankruptcy proceeding, and consider them on a motion to dismiss. See Ieradi v. Mylan Lab., Inc., 230 F.3d 594, 600 n.3 (3d Cir. 2000) ("Under Federal Rule of Evidence 201 we may take judicial notice at any stage of the proceeding of a fact not subject to reasonable dispute [*3] that is capable of accurate and ready determination by resort to a source whose accuracy cannot be reasonably questioned."). 3 Id. at 11 (Schedule D). Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 6 of 23 Page 6 of 22 Messer v. First Fin. Fed. Credit Union $409.34, and $883.08-were listed under "Unsecured Nonpriority Claims." 4 In October 2005, Plaintiff and her former husband were granted a bankruptcy discharge, and the bankruptcy proceeding was closed in April 2006. 5 Plaintiff alleges that she continued to make monthly payments on her Vehicle Debt, and made the final payment on or about May 5, 2011. Nonetheless, on May 17, 2011, her car was towed and repossessed by First Financial. The following day, Plaintiff called First Financial and spoke to loan repayment officer Donald Stewart, who agreed that Plaintiff had satisfied the Vehicle Debt, but told her that the car had been repossessed pursuant to a "cross-collateralization clause" in the Vehicle Loan Agreement which provided that the vehicle was to serve as collateral in the event Plaintiff defaulted on her other First Financial loans. In response to Plaintiff's questions, First Financial sent her a copy of a "Promissory Note and [Security] Agreement," which First Financial stated was an addendum to the Vehicle Loan Agreement. The Promissory Note contained a clause reading, in part, "Property given as security for this loan or for any other loan will secure all amounts I owe the Credit Union now and [*4] in the future." Plaintiff also received a letter dated May 17, 2011, stating she had until June 3, 2011, to redeem the car by paying First Financial $6,308.84. 6 After the redemption period passed, First Financial sold Plaintiff's car and its contents to satisfy her alleged remaining debt. Plaintiff asserts, however, that she never saw the Promissory Note or its cross-collateralization clause before the repossession, that the unsigned Promissory Note was fabricated by First Financial in a fraudulent attempt to justify the repossession, that no such addendum was attached to or integrated into either the Vehicle Loan Agreement or her other debt agreements at the time they were 4 Id. at 14 (Schedule F). 5 Bankr. Doc. Nos. 24 & 26. 6 Mot. to Dismiss, Ex. H (Doc. 13-1). executed, 7 and finally, that any debt remaining under her other loan agreements with First Financial was unsecured debt properly discharged in bankruptcy before her car was repossessed. Accordingly, she alleges, First Financial had no right to repossess or sell the vehicle. Both Plaintiff and her current spouse, Charles Messer, allege that they suffered severe emotional and physical distress as a result of First Financial's repossession of Plaintiff's car. Specifically, Plaintiffs allege that the wrongful repossession, in addition to causing stress, required them to lease a new vehicle. They allege that the presence of a new car in the parking lot of the church where Charles Messer is a clergyman caused gossip and speculation among the parishioners and an investigation into Mr. Messer's management of church funds. They further allege that anxiety resulting from this gossip and investigation caused Mr. Messer, who had suffered a stroke in December 2007, to experience bleeding of the brain on August 7, 2011, which required his hospitalization. In the Second Amended Complaint, 8 Plaintiff 7 Specifically, Plaintiff alleges that her own signed carbon copy of the Vehicle Loan Agreement contains no perforations to support an inference that the addendum was originally attached to and integrated into [*5] the one-page contract. SAC ¶ 31. 8 Plaintiffs filed their original Complaint on June 24, 2011, bringing claims for violations of the Fair Debt Collection Practices Act, the FCEUA, the UTPCPL, and conversion [Doc. No. 1]. Defendant moved to dismiss the Complaint [Doc. No. 11], and Plaintiffs filed a First Amended Complaint [Doc. No. 12], bringing claims for willful violation of the bankruptcy discharge injunction, violations of the FCEUA and the UTPCPL, conversion, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium by Mr. Messer. First Financial moved to dismiss the First Amended Complaint [Doc. No. 13] and Plaintiffs filed a response in opposition [Doc. No. 15], voluntarily withdrawing their claim for negligent infliction of emotional distress and including a cross-motion to amend the loss of consortium claim and file a Second Amended Complaint. The Court granted the cross- motion [*7] [Doc. No. 18]; however, rather than requiring complete re-briefing, the Court deemed the pending Motion to Dismiss re-filed as to the Second Amended Complaint [Doc. No. 19], noting that Plaintiffs' joint claim for negligent infliction of emotional distress was dismissed with prejudice as withdrawn and the loss of consortium claim was now correctly brought by Mrs. Messer. Now Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 7 of 23 Page 7 of 22 Messer v. First Fin. Fed. Credit Union Diane Messer asserts claims against First Financial for willful violation of the 2005 bankruptcy discharge injunction, pursuant to 11 U.S.C. § 524 (Count I); violations of the Pennsylvania Fair Credit Extension Uniformity Act ("FCEUA"), 73 Pa. Stat. §§ 2270.1, et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law [*6] ("UTPCPL"), 73 Pa. Stat. §§ 201-1 to 201-7 (Count II); and conversion (Count III). Both Mr. and Mrs. Messer bring claims for intentional infliction of emotional distress (Count IV), and Diane Messer brings a claim for loss of consortium as a result of her husband's injuries (Count V). II. STANDARD OF REVIEW To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" 9 and "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element" of a claim. 10 Specifically, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact) [*8] . . . ." 11 The question is not whether the plaintiff ultimately will prevail but whether the complaint is "sufficient to cross the federal court's threshold." 12 before the Court is Defendant's Motion to Dismiss, re-filed as to the Second Amended Complaint [Doc. No. 13], Plaintiffs' Opposition thereto [Doc. No. 20], Defendant's Reply [Doc. No. 21], and Plaintiffs' Sur-reply [Doc. No. 24]. 9 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)); see also Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1323, 179 L. Ed. 2d 398 (2011). 10 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (citing Twombly, 550 U.S. at 556) (internal quotation marks omitted). 11 Twombly, 550 U.S. at 555 (citations omitted). 12 Skinner v. Switzer, 131 S. Ct. 1289, 1296, 179 L. Ed. 2d 233 (2011) (citation omitted). At the motion to dismiss stage, a court In evaluating a challenged complaint, a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." 13 Although the Court must draw all reasonable inferences from the allegations in favor of the plaintiff, 14 it "need not accept as true [*9] 'unsupported conclusions and unwarranted inferences,'" 15 or the plaintiff's "bald assertions" or "legal conclusions." 16 III. DISCUSSION A. Violation of Bankruptcy Discharge Injunction; Violation of the FEUCA and the UPTCPL; and Conversion First Financial has moved to dismiss Plaintiffs' claims for conversion and violations of the bankruptcy discharge injunction, the FEUCA, and the UPTCPL, arguing that the cross- collateralization clauses in the Vehicle Loan Agreement and the other loan agreements are valid and enforceable under Maryland law, pursuant to Section 9-204(c) of the Uniform Commercial Code and Maryland case law. 17 Therefore, [*10] Defendant argues, all of Plaintiff's First Financial debts were secured by a lien on her vehicle and were not discharged in the bankruptcy determines only whether a plaintiff will be permitted to seek evidence in support of the claims in the complaint. See Twombly, 550 U.S. at 556, 558-59. 13 Phillips, 515 F.3d at 233 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002) (quotation marks omitted). 14 Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010). 15 Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183- 84 (3d Cir. 2000) (quoting City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998)). 16 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997) (quoting Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st Cir. 1996)) (quotation marks omitted). 17 Mot. to Dismiss at 6-7. Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 8 of 23 Page 8 of 22 Messer v. First Fin. Fed. Credit Union proceeding. 18 Consequently, Plaintiffs cannot maintain a claim sounding in unfair debt collection or conversion, because First Financial's repossession of her vehicle was legal. 19 However, these arguments depend upon the resolution of disputed issues of fact that the Court cannot reach on a motion to dismiss. Plaintiff does not claim that an existing cross-collateralization clause or lien is unenforceable or that her debt was unsecured despite such a clause; rather, she asserts that a cross-collateralization clause was not included in the Vehicle Loan Agreement, and that the documents First Financial has proffered in support of its Motion are fabrications. Accepting these factual allegations as true for purposes of the motion to dismiss, the existence of the cross- collateralization clauses is in dispute and the allegations are sufficient to state a cause of action for the claims in Counts I-III. B. Intentional Infliction of Emotional Distress To bring a claim for intentional infliction of emotional [*11] distress, a plaintiff must demonstrate: 1) that the defendant's conduct was extreme and outrageous, 2) that the conduct was intentional or reckless, 3) that the conduct caused emotional distress, and 4) that the resulting emotional distress was severe. 20 18 Id. at 8-9. 19 Id. at 9-11. 20 See Bruffett v. Warner Commc'ns, Inc., 692 F.2d 910, 914 (3d Cir. 1982) (citing Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979) (en banc)); Ruder v. Pequea Valley Sch. Dist., 790 F. Supp 2d 377, 397 (E.D. Pa. 2011). The Pennsylvania Supreme Court has not expressly recognized a cause of action for the tort of intentional infliction of emotional distress, but "has acknowledged its existence and has analyzed its elements in various respects." Weiley v. Albert Einstein Med. Ctr., 2012 PA Super 106, 51 A.3d 202, 2012 WL 1889634, at *10 n.12 (Pa. Super. Ct. 2012) (citing Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 n.10 (Pa. 1998); Kazatsky v. King David Mem'l Park, Inc., 515 Pa. 183, 527 A.2d 988, 988-89 (Pa. 1987)). Nor has the Pennsylvania Supreme Court formally adopted § 46 of the Restatement of Torts, but has cited this section "as setting forth the minimum elements necessary to sustain such a cause of action." Taylor v. Albert Einstein Med. Ctr., 562 Pa. 176, 754 A.2d 650, 652 (Pa. 2000) [*12] (citing To satisfy the first element, "[t]he conduct must be so outrageous in character, 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." 21 "[C]ourts have been chary to allow recovery for a claim of intentional infliction of emotional distress." 22 It is "not [] enough that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that this conduct has been characterized by 'malice,' or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort." 23 The tort is instead "reserved by the courts for only the most clearly desperate and ultra extreme conduct." 24 Under Pennsylvania law, "it is for the court to determine in the first instance whether defendant's conduct can be reasonably regarded as so extreme and outrageous to permit recovery." 25 Here, Kazatsky, 527 A.2d at 988); see also Reedy v. Evanson, 615 F.3d 197, 231-32 (3d Cir. 2010) (recognizing intentional infliction of emotional distress as a tort in Pennsylvania). 21 Hoy, 720 A.2d at 754 (quoting Buczek v. First Nat'l Bank of Mifflintown, 366 Pa. Super. 551, 531 A.2d 1122, 1125 (Pa. Super. Ct. 1987) (internal quotation omitted). 22 Id. at 753. 23 Id. at 754 (citing Restatement (Second) of Torts § 46, cmt. d (1965)) (internal [*13] quotation omitted). 24 Id. For examples of circumstances in which courts have found extreme or outrageous conduct, see, e.g., Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118, 121 (Pa. 1970) (defendant, after striking and killing plaintiff's child with an automobile, failed to notify authorities or seek medical assistance and buried the body in a field, where it was discovered and returned to parents two months later); Chuy, 595 F.2d at 1274 (professional sports team physician knowingly provided the press with false information that plaintiff, a retiring player, was suffering from a fatal disease); Banyas v. Lower Bucks Hosp., 293 Pa. Super. 122, 437 A.2d 1236, 1238 (Pa. Super. Ct. 1981) (defendants intentionally fabricated documents to suggest that plaintiff had killed a third party, leading to plaintiff's indictment for homicide). 25 Corbett v. Morgenstern, 934 F. Supp. 680, 684 (E.D. Pa. 1996) (citing Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988); Restatement (Second) of Torts § 46, cmt. h). Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 9 of 23 Page 9 of 22 Messer v. First Fin. Fed. Credit Union Plaintiff alleges that First Financial repossessed and sold her car without legal justification, sent her a single notification letter informing her of the repossession and redemption policy, and thereafter [*14] fabricated loan documents to support the repossession. 26 If true, such actions are possibly fraudulent and certainly disgraceful; however, the Court does not find the conduct alleged comparable to that found to be sufficiently "extreme and outrageous" as defined by case law. 27 26 Defendant argues that its conduct cannot be considered extreme or outrageous because it repossessed Plaintiff's car lawfully. Mot. to Dismiss at 11-14. At the motion to dismiss stage, however, the Court is bound to accept as true Plaintiff's allegation that the loan agreements did not contain a cross-collateralization clause, and therefore cannot determine whether Defendant's conduct was "lawful." See, supra, Part III.A. 27 Courts in this district have suggested that unjustified foreclosure of a residential property might, in egregious circumstances, support a claim for intentional infliction of emotional distress, but even in that context have yet to find circumstances that meet the outrageous conduct requirement. See, e.g., Brown v. Udren Law Offices PC, No. 11-2697, 2011 U.S. Dist. LEXIS 102004, 2011 WL 4011411, at *4 (E.D. Pa. Sept. 9, 2011) [*15] ("Plaintiff alleges only that various documents related to the foreclosure action falsely indicated that Defendants had obtained a judgment against her. Plaintiff does not allege that she was not in default of her mortgage obligations. Plaintiff also does not allege that Defendants did not have the right to foreclose on the property. . . . [T]his conduct alone is not so outrageous, so extreme, or so beyond the bounds of decency to support a separate cause of action for [intentional infliction of emotional distress] under Pennsylvania law."); Numerof v. Cont'l Title Ins. Co., No. 87-6874, 1987 U.S. Dist. LEXIS 11902, 1987 WL 30135, at *5 (E.D. Pa. Dec. 24, 1987) ("In [the Court's] view, even if defendant did not have a right to foreclose, providing notice of intention to foreclose, would not, absent a clear showing of knowledge that there was no right to foreclose, provide a basis for a cause of action for intentional infliction of emotional distress."); Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa. Super. 377, 368 A.2d 770, 772-74 (Pa. Super. Ct. 1976) (even where defendants knew that foreclosure could not occur without a hearing and revival of judgment, threatening immediate foreclosure was not extreme or outrageous conduct); [*16] see also Wilson v. Am. Gen. Fin. Inc., 807 F. Supp. 2d 291, 303 (W.D. Pa. 2011) (defendants' untrue statements that plaintiff's accounts were past due as a result of untimely or delinquent payments, standing alone, are not sufficiently shocking or outrageous); Clay v. Option One Mortg. Corp., No. 07- 1327, 2007 U.S. Dist. LEXIS 69191, 2007 WL 2728972, at *5 (E.D. Pa. Sept. 18, 2007) (dismissing claim for emotional distress based on defendants' false listing of plaintiff as mortgagor in an advertisement for a sheriff's sale). Moreover, Plaintiffs' allegations are insufficient to establish the remaining elements of a claim for intentional infliction of emotional distress. The Third Circuit has concluded that, in Pennsylvania, "both intentional and negligent infliction of emotional distress require[] a manifestation of physical impairment resulting from the distress" 28 or "some type of resulting physical harm due to the defendant's outrageous conduct." 29 As to the severity of the resulting distress, "[t]he Pennsylvania Supreme Court has enunciated an objective standard, permitting recovery only 'where a reasonable person normally constituted would be unable to adequately cope with the mental stress engendered by [*17] the circumstances of the event.'" 30 A plaintiff must therefore "plead facts that would support an inference that the distress . . . suffered was the kind of unbearable mental anguish that rose to the level of severe emotional distress." 31 Here, both Plaintiffs assert simply that they 28 Fulton v. United States, 198 F. App'x 210, 215 (3d. Cir. 2006) (citing Reeves v. Middletown Athletic Ass'n, 2004 PA Super 475, 866 A.2d 1115, 1122-23 (Pa. Super. Ct. 2004)). 29 Reedy, 615 F.3d at 231 (quoting Swisher v. Pitz, 2005 PA Super 56, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005)) (quotation marks omitted); Allstate Prop. & Cas. Ins. Co. v. Vargas, No. 06-3368, 2006 U.S. Dist. LEXIS 95608, at *14 (E.D. Pa. Dec. 28, 2006) ("'[E]xtreme mental anguish, outrage, severe anxiety . . . painful embarrassment among her friends' do not constitute physical illnesses but rather are mental [*18] and psychic injuries for which Pennsylvania law offers no redress in the context of an intentional infliction of emotional distress claim."); Reeves, 866 A.2d at 1122-23 ("a plaintiff must suffer some type of resulting physical harm due to the defendant's outrageous conduct" (citing Fewell v. Besner, 444 Pa. Super. 559, 664 A.2d 577, 582 (Pa. Super. Ct. 1995))). But see McClease v. R.R. Donnelley & Sons Co., 226 F. Supp. 2d 695, 702- 703 (E.D. Pa. 2002) (holding that physical harm includes ongoing mental and emotional harm, and sustaining an intentional infliction of emotional distress claim where a plaintiff alleged only "serious emotional harm, psychological distress and damage" (citations and quotation marks omitted)). 30 Mastromatteo v. Simock, 866 F. Supp. 853, 859 (E.D. Pa. 1994) (quoting Kazatsky, 527 A.2d at 993). To survive summary judgment, competent medical evidence of both severity and causation is required. Kazatsky, 527 A.2d at 995. 31 Kist v. Fatula, No. 06-67, 2007 U.S. Dist. LEXIS 60615, 2007 WL Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 10 of 23 Page 10 of 22 Messer v. First Fin. Fed. Credit Union suffered "severe emotional distress." This conclusory allegation is insufficient to state a claim. Similarly, Plaintiffs' allegations that they suffered "extreme stress, anxiety and mental anguish," "embarrassment," "loss of sleep, [and loss of] appetite" are inadequate to support an inference that the emotional distress was severe, or beyond the ordinary. 32 While Charles Messer suffered an undoubtedly serious physical injury allegedly induced by emotional distress, Plaintiffs have failed to plead the requisite causal link between First Financial's actions [*20] and Mr. Messer's brain bleed, which occurred more than two months after the repossession of Mrs. Messer's car. Plaintiffs have not alleged that any of First Financial's actions were intentionally directed at Charles Messer, who was neither a party to any loan agreement with First Financial nor the owner of the car. Rather, Plaintiffs explain that Mr. Messer's injury was the result of anxiety caused primarily by the malicious gossip of his parishioners and the investigation into his management of church funds. Plaintiffs contend that the gossip and investigation were instigated by the presence of a new car in the church parking lot, which Plaintiffs themselves leased to replace the repossessed Toyota Prius. As alleged, First 2404721, at *22 (W.D. Pa. Aug. 17, 2007). 32 See Schuster v. Twp. of N. Sewickley, No. 12-00333, 2012 U.S. Dist. LEXIS 80853, 2012 WL 2116574, at *5 (W.D. Pa. June 11, 2012) ("Plaintiffs' Amended Complaint merely asserts conclusory statements that Plaintiffs [*19] suffered 'sever [sic] emotional and psychological distress, humiliation, shame, embarrassment, and inconvenience.' . . . [N]either Plaintiffs' conclusory statements regarding severe emotional distress, nor Plaintiffs' allegations of humiliation, embarrassment, or inconvenience, are sufficient to demonstrate that the severity goes beyond that which any reasonable man could be expected to endure." (alterations in original, citation omitted)). But see Lane v. Cole, 88 F. Supp. 2d 402, 407 (E.D. Pa. 2000) ("Severe emotional distress includes 'fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea.' Such emotional distress must also be accompanied by some physical manifestation. Plaintiffs' allegations that they continue to suffer 'fear, anxiety, stress, anger, headaches, nightmares, humiliation, embarrassment, emotional distress [and] mental anguish' are sufficient to raise an inference of severe emotional distress." (citations omitted)). Financial's actions are insufficiently proximate to Mr. Messer's injuries to establish the requisite elements of intent and causation. 33 C. Loss of Consortium Plaintiff Diane Messer has brought a loss of consortium claim based on the injuries suffered by her husband, Charles [*21] Messer. Under Pennsylvania law, a loss of consortium claim is necessarily derivative of a claim by the injured spouse; accordingly, it is "always dependent upon the injured spouse's right to recover." 34 Here, the injured spouse, Charles Messer, brings only a claim for intentional infliction of emotional distress. Because the Court has held that First Financial's conduct was not outrageous enough to support that emotional distress claim, and that Plaintiffs cannot plead the elements of intent and causation as to Mr. Messer's injury, Diane Messer's loss of consortium claim must also fail. IV. CONCLUSION For the foregoing reasons, the Court will grant Defendant's Motion to Dismiss Plaintiffs' claims for Intentional Infliction of Emotional Distress (Count IV) and Loss of Consortium (Count V) and deny the Motion to Dismiss in all other respects. An appropriate Order follows. ORDER AND NOW, this 30th day of July 2012, upon consideration of Defendant's Motion to Dismiss Plaintiffs' Second Amended Complaint [Doc. No. 13]; [*22] Plaintiffs' Response in Opposition thereto [Doc. No. 20]; Defendant's Reply [Doc. No. 33 See generally Brown v. Phila. Coll. of Osteopathic Med., 2000 PA Super 262, 760 A.2d 863, 868-69 (Pa. Super. Ct. 2000) (discussing causation in the context of a claim for negligent infliction of emotional distress). 34 Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 206 (3d Cir. 2001) (quoting Scattaregia v. Shin Shen Wu, 343 Pa. Super. 452, 495 A.2d 552, 554 (Pa. Super. Ct. 1985)) (quotation marks omitted). Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 11 of 23 Page 11 of 22 Messer v. First Fin. Fed. Credit Union 21]; and Plaintiffs' Sur-Reply [Doc. No. 24]; and for the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED that Defendant's Motion is GRANTED in part and DENIED in part, as follows: 1. Defendant's Motion is GRANTED as to Count IV (Intentional Infliction of Emotional Distress); accordingly, (a) as to Plaintiff Charles Messer, Count IV is DISMISSED with prejudice; and (b) as to Plaintiff Diane Messer, Count IV is DISMISSED without prejudice, with leave to amend within twenty-one (21) days of the date of this Order; and 2. Defendant's Motion is GRANTED as to Count V (Loss of Consortium), which is DISMISSED with prejudice; and 3. Defendant's Motion is DENIED as to Counts I- III. It is so ORDERED. BY THE COURT: /s/ Cynthia M. Rufe CYNTHIA M. RUFE, J. End of Document Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 12 of 23 Rementer v. Kellogg Co. United States District Court for the Eastern District of Pennsylvania October 1, 2015, Decided; October 1, 2015, Filed CIVIL ACTION NO. 14-1340 Reporter 2015 U.S. Dist. LEXIS 133700 *; 2015 WL 5737325 TRICIA REMENTER, Plaintiff, v. KELLOGG COMPANY and, KELLOGG USA INC., Defendants. Counsel: [*1] For TRICIA REMENTER, Plaintiff: TIMOTHY R. HOUGH, LEAD ATTORNEY, DIANNE L. ELLIOTT, JAFFE & HOUGH, PHILADELPHIA, PA. For KELLOGG COMPANY, KELLOGG USA INC., Defendant: LAWRENCE J. MURPHY, LUIS E. AVILA, LEAD ATTORNEYS, VARNUM LLP, GRAND RAPIDS, MI; BRIAN G. WELSH, CARL D. BUCHHOLZ, III, RAWLE & HENDERSON LLP, PHILADELPHIA, PA. Judges: WENDY BEETLESTONE, J. Opinion by: WENDY BEETLESTONE Opinion MEMORANDUM OPINION I. INTRODUCTION Plaintiff Tricia Rementer alleges in this employment discrimination action that Defendants Kellogg Company and Kellogg USA Inc. (together, "Kellogg") violated her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Pennsylvania Human Relations Act, 42 Pa. Cons. Stat. § 951 et seq.1; and, under Pennsylvania state law, is liable for intentional infliction of emotional distress and negligent hiring. Plaintiff alleges that while she was employed at Kellogg she was subjected to hostile work environment sexual harassment and retaliation culminating in the termination of her employment in March 2012. Defendants have filed a motion for summary judgment on every claim. II. FACTUAL BACKGROUND A. Plaintiff's Job Function Plaintiff began working for Kellogg [*2] in March 2006 as a Territory Service Representative ("TSR"). Joint Appendix ("JA") 310. In June 2009, she moved into the role of Retail Sales Manager ("RSM") in the Eastern Zone of the Direct Store Delivery ("DSD") Snacks Division. She remained as an RSM until March 5, 2012, when she was fired. As an RSM, Plaintiff's primary function was to "sell and manage the merchandising of Kellogg DSD products within a specified geographic area to deliver quarterly/yearly sales budget and growth targets." JA 35. As such, her job was to develop business relationships with individual stores in her region, e.g., Target, ACME, Pathmark, etc., to place Kellogg's snack products on these client stores' shelves and thereby grow Kellogg's sales 1 The Third Circuit treats Title VII and PHRA claims coextensively. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 13 of 23 Page 13 of 22 Rementer v. Kellogg Co. according to specified metrics. To accomplish these goals, Plaintiff managed TSRs and part-time workers ("PTWs") to handle inventory and merchandising duties, among other responsibilities. JA 35-37. More specifically, she was responsible for holding TSRs and PTWs accountable for proper inventory rotation and levels; establishing rapport with store management; partnering with her District Managers ("DMs") to "improve delivery efficiencies and optimize customer service [*3] levels"; and assisting with merchandising when necessary, including building displays, rotating product, merchandising on shelves, etc. Id. Kellogg's DMs evaluate an RSM's performance by conducting "coaching trips" or store visits to obtain a visual understanding of how well an RSM is managing product within a client store and to meet with the client store managers to assess their needs and the relationships with their RSMs. See, e.g., JA 5, 38, 45-47, 101. An RSM's relationship with her client store managers is critical to her success at Kellogg as the company maintains a long-standing policy of discharging DSMs who are "fired" from any of the client stores they service. JA 6, 17, 57. In some instances, if a client store manager threatens to fire an RSM, the DM will attempt to convince the manager to withdraw the request. See, e.g., JA 183, 219. However, if the client store manager is not persuaded to let the RSM continue serving the client store, the RSM is terminated from Kellogg. Id. B. Plaintiff's Work History During her tenure as an RSM, Plaintiff was supervised primarily by three DMs: James Kern (2009-2010), Mark Vaspoli (2011), and Joseph Tricome (late 2011-2012). Each of these [*4] DMs documented similar concerns concerning Plaintiff's performance. In 2009, 2010, and 2011, Plaintiff received a year-end performance grade of "C - Did Not Meet Expectations." JA 44, 48-50, 200, 226, 296-97. Moreover, Plaintiff was threatened with removal from client stores while reporting to each of her three DMs. JA 39, 45, 57, 154. Until the last demand for removal from a client store in March 2012, Plaintiff's DMs were able to persuade the stores to allow Plaintiff to continue. 1. Performance under James Kern (2009-2010) On September 3, 2009, shortly after starting in her RSM role, James Kern, Plaintiff's DM and direct supervisor, issued her a memo informing Plaintiff that he was "very concerned about proper communication levels on [her] territory" and noting that there had been "complaints and orders refused" at "66% of [Plaintiff's] total business." JA 38. On October 19, 2009, Kern issued Plaintiff a memo notifying her that "over the past several months there have been instances of running out of product or ordering wrong product into the [Pathmark Frankford Avenue] store . . . ." JA 39. Kern further advised Plaintiff that "the store will no longer tolerate what they view as poor [*5] service." Id. Kern specifically noted to Plaintiff that if she were removed from the store "company policy states that you cannot sufficiently fulfill the obligation for your job and action will be taken up to termination." Id. At the end of 2009, Kern rated Plaintiff's performance "C - Did not meet expectations." JA 40-44. In October 2010, Kern conducted a "coaching trip" of three of Plaintiff's client stores and documented his findings in a memo to Plaintiff. JA 45-47. In the memo, Kern highlighted feedback he received, including "lack of communication" with the client store managers; a grade of 5/10 for service issues with ordering product, communication and follow through; and, significantly, a request by Wal-Mart Franklin Mills to replace Plaintiff as the service manager for that store. Id. Kern noted that he spoke to the manager and was able to avoid having Plaintiff removed as the sales representative for that store. Id. At the end of 2010, Kern again rated Plaintiff's performance "C - Did not meet expectations." JA 48-50. In Plaintiff's evaluation, Kern wrote that Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 14 of 23 Page 14 of 22 Rementer v. Kellogg Co. Plaintiff "has not had a successful year in 2010 in the area of metric accomplishments, including driving sales, managing [*6] inventory and variable labor use." JA 49. Kern further stated that Plaintiff had "poor communication with several store managers" that led to "missing additional selling opportunities," and that she offered "poor planning and direction to TSRs and PT[W]s," thereby overusing her variable labor hours." Id. 2. Performance Under Mark Vaspoli In early 2011, Mark Vaspoli took over as Plaintiff's DM. JA 263. On April 4, 2011, Vaspoli sent Plaintiff an email documenting his observations from a visit to one of Plaintiff's client stores. JA 51-53. Vaspoli noted that the "back stock was out of control, unorganized and over loaded" and that the "receiver was totally upset and disappointed with us." Id. On June 15, 2011, Vaspoli sent Plaintiff an email addressing various problems with her work and noting that her "next follow up will be a written PIP [Performance Improvement Plan] if these issues are not addressed." JA 133-34. Vaspoli copied his supervisor, Zone Manager John Keane, on his email to Plaintiff. Id. That same day, Vaspoli emailed Trish Burgett, Kellogg's Senior Employee Relations Specialist, that he would "like to move forward and put Trish on a PIP." JA 132-34. On June 16, 2011, Burgett forwarded [*7] Vaspoli's June 15, 2011 email to Melanie Blumberg in Human Resources, noting that Vaspoli "stated he has concerns about [Plaintiff's] performance and wanted me to review what he has so far to see if we are ready to progress to a PIP." JA 132. Burgett then responded to Vaspoli by email and asked if he had "more documentation" regarding Plaintiff, including her year-end performance review for 2010. JA 135. In the same email, Burgett advised Vaspoli to "see how [Plaintiff] reacts" to his June 15, 2011 email and "[g]ive her a couple of weeks to complete the deliverables." Id. On June 20, 2011, Plaintiff complained to Blumberg about issues she was having with Vaspoli. JA 102. Plaintiff complained that Vaspoli was "always out on [her] territory" and was "undermining [her] in [her] stores." JA 13. As an example of this behavior, Plaintiff discussed "the way [Vaspoli] would talk to [her] in the stores and how [she] was running [her] stores." Id. Finally, Plaintiff complained (and no one disputes) that Vaspoli continued to refer to her as "girlfriend" on several occasions despite Plaintiff's request that he stop it. JA 23. At no point did Plaintiff complain about conduct by Vaspoli of a sexual nature. [*8] JA 28, 30-31. Following her meeting with Plaintiff, Blumberg reported Plaintiff's complaints to Zone Manager Keane, who then counseled Vaspoli on "speak[ing] to everybody professionally" and instructed him to stop addressing her as "girlfriend." JA 93, 177, 266. Vaspoli apologized to Plaintiff and stopped using the term "girlfriend." JA 23, 266. On June 24, 2012 Vaspoli sent an email to Blumberg and Keane seeking guidance concerning how to respond to Plaintiff, who had just complained that her knee was hurting, given that the injury could potentially be work-related. JA 289. Vaspoli noted: "I do not like 'Managing on [e]gg shells' but understand that I need to manage her differently." Id. Plaintiff's knee pain did not become a further issue. In August 2011, one of Plaintiff's stores threatened to "throw [her] out for poor performance," which Vaspoli and Keane explained to Plaintiff would, under Kellogg's policy, result in her termination if they were unable to convince the store manager to change his mind. JA 57-63. On August 22, 2011, Vaspoli and Keane met with the store manager to discuss the store's concerns regarding Plaintiff's work quality. Id. Keane subsequently drafted a letter to Plaintiff [*9] describing his conversation with the store manager. Id. Keane noted that the client "was again concerned with [Plaintiff's] ability to effectively manage his store" and noted that "his biggest issue was [Plaintiff's] lack of responsiveness" with regard to delivery issues. Id. Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 15 of 23 Page 15 of 22 Rementer v. Kellogg Co. Keane further noted that he had visited additional stores serviced by Plaintiff and found one of them to be "in very bad shape from a merchandising perspective." Id. Keane added that "this continues to be a trend with your stores. This is another case of poor ordering, and ability to manage the account effectively." Id. On September 7, 2011, Plaintiff met with Blumberg and Keane to "review the status of her performance" and discuss ways she could improve. JA 94. Following that meeting, Plaintiff was provided with a "Retail Sales Manager Best Practices Tool Kit," which was designed to assist Plaintiff in improving her performance. JA 19, 94- 95, 105-122. On October 9, 2011, Vaspoli copied Blumberg on an email exchange with Plaintiff in which he chastised Plaintiff for not handling an issue at a Genuardi's supermarket over the weekend. JA 140- 44. Vaspoli wrote: "Trish, [t]hanks for getting back with me.....in the time you [*10] took composing the email [to me,] you could have reached out to Dave and serviced your customer. . . . [I]t is your responsibility to assist your customers, even on your day off if you have not properly communicated to him or the store with any issues or problems . . . so they are informed." Id. Two days later, Plaintiff reached out to Burgett. JA 138. Plaintiff complained that she still had "ongoing issues" with Vaspoli and stated that "things were escalating not getting better." Id. Plaintiff told Burgett that Vaspoli told her she was "the worst" RSM in her district and described the incident on October 9. Id. Burgett's notes from that conversation indicate that a "[r]eview of [Plaintiff's] metrics indicate she is near/at the bottom of most metrics." Id. (emphasis added). Burgett also "warned [Plaintiff] that [by not attending to Vaspoli's request on October 9] she was defying a direct request from her manager, which could be considered insubordination." Id. At no point during this conversation did Plaintiff complain that Vaspoli was harassing her in a sexual manner. On October 31, 2011, Vaspoli contacted Human Resources to request again that Plaintiff be placed on a PIP. JA 283. That request [*11] was reviewed and approved. Id. On November 3, 2011, Plaintiff was placed on a 90-day PIP. JA 82-86. As part of the 90-day PIP, Vaspoli was required to review Plaintiff's progress after thirty days. On December 14, 2011, Vaspoli attempted to send an email to Blumberg, Burgett, and Keane to give a "quick up-date on Tricia Rementer's 90 PIP." JA 145-46. Vaspoli noted that he had "been keeping weekly notes on issues and things that have been popping up over the past 4 weeks." Id. Vaspoli's email also notes: "I also have attached the powerpoint document on our meeting with the Genaurdi's [sic] team. As you will see he wanted her replaced and I got her back into the store with this program that I set up for her. There are many refusals that have come out of her stores over the past 30 days that I am currently pulling info on but I have over 6 so far." Id. Vaspoli concluded that "based on this info alon[e] I am recommending that we term[inate] but will wait to hear your thoughts. I am not seeing any improvements, I actually think she has given up at this point." Id. Later that day, Vaspoli noticed that he had "screwed up" and sent the email recommending Plaintiff's termination to an RSM named John Kent (one [*12] of Plaintiff's peers) instead of his boss and intended recipient, John Keane. JA 147. Vaspoli explained that he asked Kent to delete the email concerning Plaintiff and not discuss it with anyone. JA 151. However, the email was not contained and Plaintiff and her peers became aware of the email and its contents. Id. Due to this incident, Vaspoli was removed as Plaintiff's DM. 3. Performance Under Joe Tricome Joe Tricome took over as Plaintiff's DM in December 2011. JA 152. Tricome testified at his deposition that Keane asked him to take over managing Plaintiff because of "an issue with an email sent out inadvertently." JA 215. Tricome Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 16 of 23 Page 16 of 22 Rementer v. Kellogg Co. noted that he "wasn't privy to what the email said, the content, who got it or what happened, but [Keane] felt that in fairness to [Plaintiff] that it would probably be best to remove Mark [Vaspoli] from that situation and have me manage her." Id. The record indicates that in order to effectuate the transition, Tricome met with Vaspoli and Keane. During that meeting, Tricome learned that Plaintiff was on a PIP. JA 216. Tricome did not recall being told that Plaintiff made complaints to Human Resources on her own behalf. Id. Regarding Plaintiff's complaints [*13] concerning Vaspoli, Tricome testified: "I don't really know that I was aware that [Plaintiff] had made complaints about [Vaspoli]. I was just brought into this because of the erroneous email and the subsequent chain of events that for fairness sake - if you want to use that word - they wanted me to be more - they wanted a[n] objective person viewing - managing [Plaintiff]." Id. At the end of 2011, Plaintiff's Performance Management Form showed a rating of "C - Did not meet expectations." JA 226. On January 3 and 4, 2012, Tricome conducted a two-day visit to Plaintiff's stores. JA 217, 228-49. Tricome documented his visit, noting, among other things, that "[b]ack [s]tock was excessive and piled in an un-safe manner," "outdated product was on shelf," "back stock was heavy with sixty (60) pieces and it is the wrong items," "[Plaintiff's] car [was] parked contrary to company policy." JA 228- 49. Tricome spoke with the Assistant Manager of one of Plaintiff's client stores, who expressed "concerns about [Plaintiff's] work ethic and ability." JA 235. Tricome concluded his evaluation by noting, "Trish[, in] the two (2) days I spent on your territory there were not too many positives." JA 236. Tricome testified [*14] that this two-day field visit was the only time he worked with Plaintiff. JA 217. On January 5, 2012, Plaintiff attended a 30-day follow-up meeting with Tricome and Vaspoli concerning her PIP. JA 280-81. Plaintiff objected to Vaspoli's presence. Id. Vaspoli testified at his deposition that he attended the meeting because he wrote the PIP document, but that he intended to let Tricome take over with respect to the 60 and 90- day follow-ups. Id. Tricome testified that he was aware that Plaintiff did not want Vaspoli to attend the meeting. JA 217. Tricome further testified that he did not understand why Vaspoli attended, and he did not find out why Plaintiff did not want Vaspoli there. Id. On or around January 19, 2012, Plaintiff took administrative leave. JA 283. On February 3, 2012, Tim McHugh, a store manager for the Pathmark on Frankfurt Avenue, requested that Plaintiff no longer service his store. JA 154. The facts surrounding McHugh's request are in dispute. Tricome testified that he received word from Tim Carolan, the TSR who had taken over Plaintiff's role while she was on administrative leave, that McHugh wanted to speak with him. JA 218. After Carolan told him that the request was [*15] urgent, Tricome drove to the Pathmark to meet McHugh in person. Id. Tricome testified that when he arrived at the store, he met McHugh and two other individuals, who were "just generally upset with our service, stale product, back stock, and it was an ongoing issue." Id. Tricome testified that McHugh told him that "he had had these issues before with Trish. He had thrown her out of the store before and let her back in and he had had it and that was it. He wanted another sales rep. And he understood that she was currently out and that [Carolan] was running the territory and he said when she comes back, he didn't want her back." Id. Tricome noted that he did not attempt to talk Plaintiff back into the store. JA 219. In his words, "they were irate and it was not a pleasant conversation." Id. Tricome's contemporaneous email to Burgett and Blumberg provides the same narrative. JA 250-51 ("Tom will not allow [Plaintiff] back in his store. He said he understood that she was currently out, and insisted that when she come back, she could not service his store."). McHugh testified that although he does not recall Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 17 of 23 Page 17 of 22 Rementer v. Kellogg Co. who initiated the phone call, he remembers that he "complained first about [Plaintiff's] [*16] service" and that he told Plaintiff's supervisor at the time "to get somebody else because she wasn't doing her job." JA 203-04. When asked what was wrong with Plaintiff's performance, McHugh testified that "the service was poor" and that "the shelves [were] empty" and "[did] not hav[e] sale items [on them]." Id. McHugh reiterated that the reason he requested Plaintiff's removal was that "the shelves [were] empty, [Plaintiff's] not bringing product in, I'm losing sales. It's as simple as that. I can't make it any simpler." JA 203-05. McHugh further explained that his request was based upon a "continuous" period of poor service, stating "I'm not going to kick somebody out because one day I walked down and the shelf is empty. Things happen, the truck was late or whatever. It's over a period of time." JA 204-05. When asked why he complained about Plaintiff while she was out on administrative leave, McHugh speculated that his complaint would have been: [a]typical on the point if it was the first offense or something like that. If it had been going on over a period of time, yeah, I would complain about it, because, obviously, if she was out for 60 days, I probably wouldn't want her back at that point, since [*17] she wasn't there for 60 days. And if I noticed a better result in service and appearance of product on the shelf, I would make a recommendation that I don't want her back in that case, because, obviously, the fill-in did a lot better job. JA 207. However, McHugh could not recall if that was what specifically happened in Plaintiff's case. Id. Plaintiff speculates that the episode with McHugh was not initiated by McHugh, but, rather, by Tricome. To summarize Plaintiff's version of the events, Tricome deliberately sought out information from Plaintiff's former supervisor, Kern, as to which store would be likely to request Plaintiff's removal. See Opp'n at 4. Having learned from Kern that McHugh would likely make this request, Tricome then solicited Plaintiff's removal from McHugh and thereby ensured her termination. See id. Kern's testimony supports Plaintiff's narrative. Kern testified that at some point in time, Tricome contacted him regarding Plaintiff "looking for stores that would kick [Plaintiff] out." JA 191. Kern further testified that Tricome told him "HR was taking a long time to get rid of her and this got dumped into his lap." Id. Defendants challenge Kern's credibility as a [*18] witness given the fact that he was also terminated from Kellogg and filed a lawsuit against Defendants for unlawful discharge. Reply at 5. On March 5, 2012, Plaintiff returned from administrative leave. JA 131. Tricome met her at one of her stores and advised her that she was terminated. Plaintiff responded that this decision "doesn't come as any surprise." JA 27. III. LEGAL STANDARD "[S]ummary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Alabama v. North Carolina, 560 U.S. 330, 345, 130 S. Ct. 2295, 176 L. Ed. 2d 1070 (2010) (citations and internal quotation marks omitted). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). "A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof." Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322- 26, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson, 477 U.S. at 248-52). A fact is material if it might affect the outcome of the suit under the governing law. Scheidemantle v. Slippery Rock Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 18 of 23 Page 18 of 22 Rementer v. Kellogg Co. Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). "The reviewing court should view the facts in the light most favorable [*19] to the non-moving party and draw all reasonable inferences in that party's favor." Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013). However, to prevail on a motion for summary judgment, "the non-moving party must present more than a mere scintilla of evidence; 'there must be evidence on which the jury could reasonably find for the [non- movant].'" Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir. 2007) (alteration in original) (quoting Anderson, 477 U.S. at 252). In other words, "[t]he non-moving party may not merely deny the allegations in the moving party's pleadings; instead he must show where in the record there exists a genuine dispute over a material fact." Id. (citing Celotex, 477 U.S. at 322-26). IV. DISCUSSION A. Sexual Harassment / Hostile Work Environment Title VII prohibits an employer from "discriminat[ing] against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a). To maintain a hostile work environment sexual harassment claim under Title VII as Plaintiff seeks to do here, she must establish that: (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 of the same sex in that [*20] position; and (5) the existence of respondeat superior liability. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). With respect to the first element, Plaintiff argues that the evidence supports a finding that Mark Vaspoli intentionally discriminated against her because of her sex by: (1) appearing at Plaintiff's store unannounced to meet with her; (2) requesting that she provide him with an itinerary of "everything that needed to be done at the stores in her territory prior to her vacation"; (3) asking her to sit next to him at business meetings; (4) routinely disparaging her to store managers in her territory by making statements that she could not do her job because she was female; and, (5) repeatedly referring to her as "girlfriend" during his first few months as her supervisor. See Opp'n at 7. Defendants argue that Plaintiff has not established the first element of her hostile work environment claim, in some instances because the record does not support Plaintiff's contention that Vaspoli took the actions she claims he did, and, in any event, because Plaintiff has produced no evidence that Vaspoli's actions constitute intentional gender discrimination. Mot. at 13-14; Reply at 2-3. A review of the record supports Defendants' conclusion. [*21] Aside from her own assertions that Vaspoli treated her differently than her male counterparts because she is a woman, see, e.g., JA 3, 14, 30-31, Plaintiff has pointed to no direct or circumstantial evidence that gender was a "substantial factor" in how she was treated. Andrews, 895 F.2d at 1485 (holding that to make out a case under Title VII, Plaintiff must show "that gender is a substantial factor in the discrimination, and that if the plaintiff 'had been a man she would not have been treated in the same manner."). Plaintiff concedes that Vaspoli never said anything to her of a sexual nature or touched her in a sexual manner. JA 28. Although "[t]o constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones in every instance or that each incident be sufficiently severe to detrimentally affect a female employee," Plaintiff must, nevertheless, establish other conduct reflecting "[i]ntimidation and hostility toward women because they are women." Andrews, 895 F.2d at 1485 (emphasis added). She has not done so. With respect to Plaintiff's allegations that Vaspoli "nitpicked" or "undermined" her by appearing at her stores unannounced or requiring an itinerary before she took leave, see, e.g., JA [*22] 14, Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 19 of 23 Page 19 of 22 Rementer v. Kellogg Co. Plaintiff's deposition reveals that she bases her conclusion that Vaspoli treated her differently than her male counterparts on a handful of conversations with three of the twelve RSMs under Vaspoli. JA 29. Significantly, Plaintiff admitted that she has no other evidence that Vaspoli treated men in her district with similar work performance differently. Id. Plaintiff further admitted that she does not know if Vaspoli appeared at any of her peer RSM's stores unannounced, and she did not see any documents that her peer RSMs gave Vaspoli before taking vacation and therefore does not know the level of detail Vaspoli required of his male RSMs. JA 29- 30. Nor has Plaintiff pointed to any record evidence from any other RSMs working under Vaspoli, male or female. Thus, Plaintiff has failed to show that Vaspoli's attention to her work performance was substantially different from his attention to Plaintiff's male colleagues. Moreover, even if Plaintiff's testimony that Vaspoli treated her differently were true, Plaintiff has failed to establish that the reason Vaspoli treated her differently was due to her gender and not a non- discriminatory reason such as Plaintiff's documented poor performance. [*23] Indeed, the record shows that Plaintiff had consistently received negative feedback and reviews from her supervisor dating back to 2009, when she was supervised by Kern, see, e.g., JA 38-39, 40-44, 45- 47, which continued when she was supervised by Vaspoli in 2011. See, e.g., JA 51, 54-56. In addition, Plaintiff received critical feedback from Keane, Vaspoli's direct supervisor. See, e.g., JA 57- 63. Given this record evidence, Plaintiff's conclusion that Vaspoli treated her differently because of her gender is untenable. Turning to Plaintiff's allegation that Vaspoli requested that Plaintiff sit next to her at meetings, Plaintiff has produced no evidence that Vaspoli's actions were intended to sexually harass or intimidate her. To the contrary, at her deposition, Plaintiff admitted that Vaspoli never touched her at those meetings, and she never asked him why he wanted her to sit next to him. JA 28. Furthermore, Plaintiff conceded that in all but one instance Plaintiff and Vaspoli were the only two people present at the meeting, and Vaspoli merely invited Plaintiff to sit in the chair next to his. JA 28-29. Even if true, then, Plaintiff's allegations do not amount to intentional discrimination [*24] based on her gender, and, given the evidence adduced by Plaintiff, did not occur at a frequency great enough to constitute a "pervasive and regular" condition of Plaintiff's work environment. Andrews, 895 F.2d at 1482. Plaintiff's allegation that Vaspoli "routinely disparaged her" to store managers is equally unsupported by the record. At her deposition, Plaintiff could only identify one store manager to whom she claims Vaspoli disparaged her, and despite working with this manager "for the entire time [she has] been on the territory," Plaintiff could not recall his name. JA 14. Moreover, Plaintiff admitted that she was not privy to any particular conversation between Vaspoli and this manager, but merely heard from her colleagues that "[Vaspoli] would talk about[her] behind [her] back." Id. Plaintiff did not attempt to obtain a statement from this, or any, manager and has pointed to no admissible evidence in the record that Vaspoli in fact made such statements. Thus, Plaintiff has failed to establish intentional discrimination relating to any such comments. Finally, with respect to Plaintiff's allegation that Vaspoli frequently referred to her as "girlfriend," the record does support a conclusion that Vaspoli used the [*25] term "girlfriend" over the course of several months and that Plaintiff was upset by it. JA 23, 92, 266. However, even if Vaspoli's habit was offensive, annoying and undoubtedly unwelcome, it stopped as soon as she brought it up with HR and HR read him the riot act. JA 28. Having concluded that Plaintiff cannot establish a prima facie case with respect to any of her allegations of intentional discrimination, the Court will grant Defendants' motion with respect to her hostile work environment claim. Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 20 of 23 Page 20 of 22 Rementer v. Kellogg Co. B. Sexual Harassment / Retaliation Plaintiff's claims of unlawful retaliation under Title VII must be analyzed under the burden-shifting paradigm established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under that standard, to succeed on her claim of unlawful retaliation, Plaintiff must demonstrate: (1) she engaged in an activity protected by Title VII; (2) after or contemporaneous with engaging in that conduct, Defendant took an adverse action against her; (3) the adverse action was "materially adverse"; and (4) a causal link exists between her participation in the protected activity and the Defendants' adverse action. Hare v. Potter, 220 F. App'x 120, 127 (3d Cir. 2007). If Plaintiff establishes a prima facie case, and Defendants point to a non-discriminatory reason for the materially [*26] adverse action, the burden shifts back to Plaintiff to prove that the non- retaliatory or non-discriminatory reason is merely a pretext for discrimination. Id. Here, Plaintiff has failed to adduce evidence in support of her prima facie case of retaliation. Even assuming arguendo that Plaintiff engaged in protected activity by complaining to Blumberg about Vaspoli on June 20, 2011, see Opp'n at 11- 13, the evidence does not support a causal connection between that activity and the two materially adverse actions identified by Plaintiff, i.e., her placement on a PIP in November 2011 and ultimate termination in March 2012.2 To 2 There is some disagreement among the parties as to what specifically Plaintiff contends are the materially adverse actions Defendants took against her. However, it appears from Plaintiff's sur-reply memorandum that she identifies two events as materially adverse: (1) "placement of the Plaintiff on a PIP," which, (2) "ultimately led to her termination." Sur-Reply at 3. Defendants argue that Plaintiff's placement on a PIP was not a materially adverse employment action because it did not alter the conditions of her employment. Reply at 3. "Materially adverse" in the context of a retaliation claim means an action that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Hare, 220 F. App'x at 128 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 54, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006); Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006)). "Stated differently, a plaintiff may meet her burden demonstrate a link between a protected activity and an employer's adverse action, a plaintiff may rely on the temporal proximity between the two if "unusually suggestive" of retaliation. Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 196-97 (3d Cir. 2015) (citations omitted). In the absence of such a close temporal proximity, the Court may consider the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action. Id. (citations omitted). [*27] The plaintiff, however, cannot establish that there was a causal connection without some evidence that the individuals responsible for the adverse action knew of the plaintiff's protected conduct at the time they acted. Id. And, above all, "each case must be considered with a careful eye to the specific facts and circumstances encountered." Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n.5 (3d Cir. 2000). Turning first to Plaintiff's placement on a PIP, the record indicates that the temporal proximity between Plaintiff's conversation with Blumberg about Vaspoli on June 20, 2011 and her placement on a PIP on November 3, 2011, four and a half months later, is not "unusually suggestive." Looking at the record as a whole, it is clear that Vaspoli sought to place Plaintiff on a PIP prior to the time she engaged in any protected activity and reiterated his request only after several more months of documented poor performance. Indeed, on June 15, 2011, Vaspoli sent Plaintiff an email addressing various problems with her work and noting that her "next follow up will be a written PIP if these issues are not addressed." JA 14, 133-34. by demonstrating that her employer's conduct is "likely to deter victims [*28] of discrimination from complaining to the EEOC." Id. (citation omitted). Thus, although the terms of Plaintiff's employment were not changed by being placed on the PIP, the fact that at least some Kellogg employees regarded a PIP as the "kiss of death" is sufficient to raise a genuine issue of material fact as to whether the threat of being put on a PIP might dissuade a reasonable worker from filing a complaint. See JA 166, 192. Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 21 of 23 Page 21 of 22 Rementer v. Kellogg Co. That same day, Vaspoli wrote to Burgett [*29] in Human Resources that he would "like to move forward and put Trish on a PIP." JA 132-134. Following Plaintiff's June 20, 2011 contact with Blumberg, however, Vaspoli followed Blumberg's instructions and continued to provide Plaintiff with "coaching/feedback and monitor [her] performance." JA 283. However, Plaintiff's performance did not improve. See, e.g., JA 57 (Aug. 22, 2011 memo from Keane to Rementer summarizing Keane and Vaspoli's discussion with Plaintiff's client at Giant on Grant Avenue after he had threatened to "throw [Plaintiff] out for poor performance"); JA 140-44 (Oct. 9, 2011 email exchange between Vaspoli and Rementer, copying Blumberg, concerning Plaintiff's refusal to personally attend to an issue at one of her stores over the weekend); JA 138 (Feb. 27, 2012 email from Burgett noting that a "[r]eview of [Plaintiff's] metrics indicate she is near/at the bottom of most metrics."). Thus, on October 31, 2011, four months after his initial request, Vaspoli requested again that Plaintiff be placed on a PIP. JA 283. That request was reviewed and approved by Human Resources. Id. Given the aforementioned chronology, it is clear that Vaspoli's actions, though perhaps designed to [*30] cause Plaintiff's termination, were not taken in retaliation for Plaintiff's alleged protected activity. As for her termination, Plaintiff argues that there is a dispute of material fact as to: (1) whether the termination was motivated solely by the complaining Pathmark store manager, John McHugh, or (2) whether Plaintiff's manager at Kellogg at the time, Joe Tricome, actively brought about her removal by asking Plaintiff's former boss, Jim Kern, which stores were unhappy with Plaintiff and prompting McHugh to request Plaintiff's replacement. Sur-Reply at 2. While the record may reflect a dispute as to who initiated the conversation between Tricome and McHugh concerning Plaintiff's removal from the Pathmark, that dispute is not material. Even if Tricome went out of his way to cause Plaintiff's termination, there is no record evidence that he knew about Plaintiff's protected activity, see JA 00216, let alone sought to have Plaintiff removed in retaliation for such activity. Nor is there any evidence that anyone at Kellogg who knew of Plaintiff's protected activity directed Tricome to seek Plaintiff's removal. Thus, even if it were the case that Tricome deliberately sought Plaintiff's [*31] termination for reasons of his own, there is no record evidence to support Plaintiff's claim that he did so in retaliation for her protected activity. See Daniels, 776 F.3d at 196-97. Accordingly, Defendants' motion for summary judgment on Plaintiff's retaliation claim is granted. C. Intentional Infliction of Emotional Distress Defendants also move for summary judgment with respect to Plaintiff's claim for intentional infliction of emotional distress ("IIED"). Such a claim requires, "at the least, [a demonstration of] intentional outrageous or extreme conduct by the defendant, which causes severe emotional distress to the plaintiff." Swisher v. Pitz, 2005 PA Super 56, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005). Moreover, "a plaintiff must suffer some type of resulting physical harm due to the defendant's outrageous conduct." Id.; see also Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010) (discussing Pennsylvania law regarding intentional infliction of emotional distress claims). As the Third Circuit has observed, "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 [IIED]." Andrews, 895 F.2d at 1487 (citing Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988)). "[A]s a general rule, sexual harassment alone does not rise to the level of outrageousness necessary to make out a cause of action for [IIED]." Id. Indeed, [*32] "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 an employee." Id. (citation omitted). And even then, "[t]he extra factor that is generally required is retaliation for turning down sexual propositions." Id. (citation Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 22 of 23 Page 22 of 22 Rementer v. Kellogg Co. omitted. As discussed herein, Plaintiff has not alleged that she was sexually assaulted or harassed by any of her supervisors. Moreover, for the reasons stated above, Plaintiff has not raised a genuine issue of material fact to avoid summary judgment in favor of Kellogg on her hostile work environment and retaliation claims. The facts surrounding Plaintiff's termination alone are insufficient to carry her IIED claim under Pennsylvania law. Accordingly, the Court will grant summary judgment in favor of Defendants on that claim. D. Negligent Hiring / Training Finally, Plaintiff concedes that Defendants are entitled to summary judgment on her claims for negligent supervision and negligent training of employees. Accordingly, judgment will also be entered in Defendants' favor on that count. V. CONCLUSION For the reasons stated [*33] herein, Defendants' motion for summary judgment is granted. An appropriate order will follow this opinion. Dated: October 1, 2015 BY THE COURT: /s/ Wendy Beetlestone, J. WENDY BEETLESTONE, J. ORDER AND NOW, this 1st day of October, 2015, upon consideration of Defendants' Motion for Summary Judgment [ECF No. 47], the Plaintiff's response in opposition thereto [ECF No. 51], the Defendants' Reply [ECF No. 49], and the Plaintiff's Sur-Reply [ECF No. 52], IT IS ORDERED that: (1) The Defendants' Motion to Dismiss is GRANTED; (2) JUDGMENT IS ENTERED IN FAVOR of Defendants Kellogg Company and Kellogg USA Inc.; and (3) The Clerk of Court is directed to close this case. BY THE COURT: /s/ Wendy Beetlestone, J. WENDY BEETLESTONE, J. End of Document Case 1:16-cv-01958-JEJ Document 29-1 Filed 12/01/16 Page 23 of 23