The opinion of the court was delivered by: SHAPIRO
Defendant Sommer Maid Creamery, Inc. ("Sommer Maid") filed a motion to dismiss part of Count 1 and Counts 2 and 3 of plaintiffs' second amended complaint; plaintiffs filed an answer and memorandum in opposition and asserting as "new matter" a request for reasonable attorneys' fees expended in replying to the defendant's motion. For the reasons stated below, defendant's motion to dismiss Count 1 in part is denied; defendant's motion to dismiss Count 2 is granted; defendant's motion to dismiss Count 3 is denied in part and granted in part; plaintiffs' "new matter," construed as a motion for attorneys', fees is denied.
When deciding a motion to dismiss, the court must consider all of the well-pleaded allegations in the complaint as true and construe the complaint in the light most favorable to plaintiffs. Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969); Hochman v. Board of Education of Newark, 534 F.2d 1094, 1097 n.1 (3d Cir. 1976). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that a plaintiff can prove no set of facts in support of the claim that would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
Plaintiffs Ray Aquino ("Mr. Aquino") and Helen Aquino ("Mrs. Aquino"), husband and wife, allege the facts as follows: Both Mr. and Mrs. Aquino worked at Sommer Maid during 1984. On July 1, 1984, Mr. Aquino was injured at work and filed a claim for workmen's compensation benefits in July, 1984. See 77 Pa.C.S.A. § 1 et seq. (West 1952 and Supp. 1986). Mr. Aquino has not returned to work at Sommer Maid (Second Amended Complaint, para. 26). Mrs. Aquino was unable to work from July 15 to August 9, 1984 because of complications from surgery; she was transferred from night shift to day shift and from a higher-paying machinist job to a lower-paying butter-wrapping job soon after returning to work. (Second Amended Complaint, paras. 27, 28). Mrs. Aquino was subjected to physical and verbal sexual harassment by her new supervisor, Ed Diehl ("Diehl"). (Second Amended Complaint, paras. 27, 29, 30, 31). Mrs. Aquino filed a sexual harassment claim with the Pennsylvania Human Relations Commission ("PHRC");
both Mr. and Mrs. Aquino attended a conciliation meeting held September 24, 1984. (Second Amended Complaint, paras. 38, 39, 40). The sexual harassment of Mrs. Aquino by Diehl and other Sommer Maid employees continued after the conciliation meeting until December 19, 1984. (Second Amended Complaint, paras. 43-55). In December, 1984, Mr. Aquino was dismissed in retaliation for participating in the PHRC conciliation meeting regarding Mrs. Aquino and for his filing a workmen's compensation claim. (Second Amended Complaint, paras. 57-58, 77-83). On December 19, 1984, Mrs. Aquino was fired in retaliation for her filing a PHRC claim and her husband's filing a workmen's compensation claim. (Second Amended Complaint, para. 65, 77-83).
In Count 1 of the second amended complaint, Mrs. Aquino alleges sex discrimination and Mr. and Mrs. Aquino allege retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (West 1981 and Supp. 1986). In Count 2 Mrs. Aquino alleges intentional infliction of emotional distress. In Count 3 Mr. and Mrs. Aquino allege wrongful discharge because they attended the PHRC proceeding and Mr. Aquino filed a workmen's compensation claim. The parties agree that Pennsylvania law governs the pendent state law claims in Counts 2 and 3.
Defendant seeks to dismiss only the part of Count 1 that alleges retaliatory discharge against Mr. Aquino. To prove a violation of section 704(a) of Title VII, 42 U.S.C.A. § 2000e-3(a), Mr. Aquino must establish a prima facie case of retaliation by showing that: (1) he engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) there is a causal connection between the protected activity and the adverse employment action. McDaniel v. Temple Independent School District, 770 F.2d 1340, 1346 (5th Cir. 1985); McKinney v. Dole, 246 U.S. App. D.C. 376, 765 F.2d 1129, 1143 (D.C. Cir. 1985). Mr. Aquino alleges facts sufficient, if true, to prove his prima facie case at trial. Participating in the PHRC conciliation meeting on behalf of his wife is protected activity under Title VII. 42 U.S.C.A. § 2000e-3(a) (West 1981); see Kralowec v. Prince George's County, 503 F. Supp. 985, 1008 (D. Md. 1980), aff'd without opinion, 679 F.2d 883 (4th Cir. 1982), cert. denied, 459 U.S. 872, 103 S. Ct. 159, 74 L. Ed. 2d 132 (1982). Mr. Aquino alleges that Sommer Maid was aware he participated in the PHRC meeting and that he was dismissed from his job, an adverse employment action, because of his participation. Therefore, even though defendant may be able to refute these allegations at trial, the facts if taken as true are sufficient to withstand a motion to dismiss.
Defendant seeks to dismiss Count 2 on the ground that in a claim for intentional infliction of emotional distress a corporation cannot be a defendant where defendant's non-party employees did not act within the scope of their employment. But Mrs. Aquino alleges that the actions of defendant's employees were performed in the course of their employment (Second Amended Complaint, para. 20) and that defendant authorized and ratified the employees' acts (Second Amended Complaint, para. 21); therefore, defendant's motion to dismiss Count 2 would be denied on this ground.
However, Pennsylvania law allows recovery for intentional infliction of emotional distress only in very egregious cases. Bradshaw v. General Motors Corp., 805 F.2d 110, 113-115 (3d Cir. 1986); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1274 (3d Cir. 1979). Even taking Mrs. Aquino's allegations as true, the facts alleged are not "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 community." Bradshaw, 805 F.2d at 114, quoting Restatement (Second) of Torts § 46 comment d. The employer-employee status is not a special relationship justifying relaxation of this standard. Bradshaw, 805 F.2d at 115.
As to those parts of Count 2 involving sexual harassment, discrimination and retaliation, Mrs. Aquino's exclusive remedy is under the PHRA. See infra p. 5. Other than acts of sex discrimination, Mrs. Aquino alleges that the following acts state a claim for intentional infliction of emotional distress: Diehl checked Mrs. Aquino's work more frequently than other employees' work (Second Amended Complaint, para. 43); Diehl followed Mrs. Aquino into the ladies' rest room, "banging on the door and asking what she was doing" (Second Amended Complaint, para. 45); the President of Sommer Maid would "sit and stare at [Mrs. Aquino] for ten minutes at a time" (Second Amended Complaint, para. 47); calling Mrs. Aquino at home to demand that she report to work (Second Amended Complaint, para. 51); and berating Mrs. Aquino for low work production (Second Amended Complaint, para. 54). These activities are not so outrageous in character and so extreme in degree as to be atrocious and utterly intolerable. Count 2 will be dismissed for failure to state a claim for intentional infliction of emotional distress.
Defendants argue that the Count 3 claims of wrongful discharge must be dismissed under Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir. 1977). Bonham holds that the Pennsylvania Human Relations Act ("PHRA") and the procedures established by the Act, 43 Pa.C.S.A. §§ 951 et seq. (Purdon 1964 and Supp. 1986) provide the exclusive state law remedy for vindication of rights the state legislature sought to protect by the PHRA. Under 43 Pa.C.S.A. § 955(a), it is unlawful for an employer to discriminate against an employee in terms and conditions of employment on the basis of sex.
Under 43 Pa.C.S.A. § 955(d), it is unlawful for an employer ". . . to discriminate in any manner against an individual because such individual has opposed any practice forbidden by this act, or because such individual has made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing under this act."
Under 43 Pa.C.S.A. § 962(b), the procedures for relief established in the PHRA are exclusive if the individual invokes the Act's procedures by filing a complaint.
Fye v. Central Transportation, Inc., 487 Pa. 137, 141, 409 A.2d 2, 4 (1979). Under 43 Pa.C.S.A. § 962(c), in cases involving discrimination claims, an individual has a right of action in the courts only where the PHRC has not entered into a conciliation agreement.
However, Mrs. Aquino's claim of discharge in retaliation for filing a complaint with the PHRC is not barred by 43 Pa.C.S.A. § 962(b) because she did not invoke the protection of the PHRA to remedy this wrong. A discharge in retaliation for filing a complaint with the PHRC is unlawful under 43 Pa.C.S.A. § 955(d). Dismissal from employment for participating in proceedings before the PHRC may be contrary to a clear mandate of public policy, 43 Pa.C.S.A. § 955(d); if so, Mrs. Aquino has a valid claim for wrongful discharge and this ground for Count 3 will not be dismissed. Cf. Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir. ...