that plaintiff informed her employer of the harassment. Once she
did so, its persistence became reasonably foreseeable. See
Mandy v. Minnesota Mining and Manufacturing, 940 F. Supp. 1463,
1471 (D.Minn. 1996) (under the Restatement (Second) of Torts 317,
after it was reported, continued harassment of plaintiff was
foreseeable, and defendant had duty to protect against it). Count
III is sufficiently stated.
The complaint also claims punitive damages under Title VII and for
negligent supervision. In Kolstad v. American Dental Association,
527 U.S. 526, ___, 119 S.Ct. 2118, 2124, 144 L.Ed.2d 494 (1999),
the Court held that a plaintiff may be entitled to punitive
damages under Title VII when the employer acts "with malice or
with reckless indifference to [the plaintiff's] federally
protected rights." Kolstad interpreted 42 U.S.C. § 1981(a) to allow
an award of punitive damages based on the employer's "knowledge
that it may be acting in violation of federal law, not its
awareness that it was engaging in discrimination." Id.*fn7
Defendant is alleged to have known of plaintiff's "repeated"
complaints of "constant" harassment. Complt. at 14. Under Kolstad,
this allegation is deficient, despite liberal notice pleading
requirements. Fed.R.Civ.P. 8(a).
Pennsylvania law allows punitive damages based on "conduct which
is `malicious,' `wanton,' `reckless,' `willful,' or `oppressive.'"
Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747-48 (1984)
(quoting Chambers v. Montgomery, 411 Pa. 339, 344-45,
192 A.2d 355, 358 (1963)). See also, Chladek v. Milligan, Civ. A. No.
97-0355, 1998 WL 334699, at *5 (E.D.Pa. June 23, 1998) (refusing
to dismiss punitive damages claim where defendants were alleged to
have engaged in "vicious" and "violent" behavior that was
"reckless" and "without provocation"). As in the instance of the
Title VII count, the negligent supervision claim, as stated here,
does not support a claim for punitive damages. Leave will be
granted to amend both punitive damages claims, subject to
Fed.R.Civ.P. 11(b)(3) ("the allegations . . . have evidentiary
An order accompanies this memorandum.
AND NOW, this 10th day of May, 2000, the motion of defendant
Topper's Salon and Health Spa, Inc. to dismiss the complaint is
ruled on as follows:
1. Count I and II — granted.
2. Count III — denied.
3. As to punitive damages — granted.
Leave is granted to amend Count I and the punitive damages claims
in Count I and III no later than May 26, 2000, subject to the
constraints of Fed.R.Civ.P. 11(b)(3). Count II is dismissed
without leave to amend.
Jurisdiction will be exercised over this action only if Count I is
satisfactorily amended. Otherwise, supplemental jurisdiction shall
be relinquished, 28 U.S.C. § 1367(c)(3).