remedies to withstand the present motion. See, e.g., Fosburg v.
Lehigh Univ., No. CIV.A. 98-864, 1999 WL 124458, at *5 (E.D.Pa.
Mar.4, 1999) (finding acts alleged within scope of EEOC charge
and denying motion to dismiss); Reddinger, 4 F. Supp.2d at
409-10 (same); Page v. ECC Mgmt. Servs., CIV.A. No. 97-2654,
1997 WL 762789, at *3 n. 6 (E.D.Pa. Dec.7, 1997) (same). As a
result, we will deny Defendants' Motion with respect to
Plaintiff's retaliation claims.
IV. Quid Pro Quo Claims: Failure to State a Claim
Next, Defendants move to dismiss Plaintiff's quid pro quo
discrimination claim. Preliminarily, we observe that there is
some confusion over exactly what type of discrimination claim
Plaintiff is asserting: a quid pro quo or a hostile work
environment claim. Defendants initially moved to dismiss
Plaintiff's claim on grounds that it did not state a hostile work
environment claim. However, after reviewing Plaintiff's own
characterization of her claim in her Response to the Motion to
Dismiss, Defendants modified their argument so to contend that
Plaintiff failed to state a quid pro quo claim. (Def.Reply,
passim). Based on our reading of the Complaint and the
briefings, we think that the claim asserted by Plaintiff is
properly characterized as a quid pro quo claim, and we will
evaluate it as such.*fn2
To state a prima facie claim for quid pro quo sexual
harassment, a Plaintiff must allege that an individual's
submission to or rejection of "unwelcome sexual advances,
requests for sexual favors, and other verbal or physical conduct
of a sexual nature" is (1) made an explicit or implicit term or
condition of employment or (2) used as the basis for employment
decisions affecting the individual. Bonenberger v. Plymouth
Township, 132 F.3d 20, 27 (3d Cir. 1997) (citing Robinson v.
City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir. 1997)).
Defendants argue that none of the alleged harassment by Lifschutz
rises to the level of a "sexual advance" and that Plaintiff did
not suffer an adverse employment action. We disagree.
First, Plaintiff alleged that Lifschutz asked her out on a date
on two occasions, once while he was making an otherwise obscene
phone call to her. (Compl. at ¶ 13). While Defendants attempt to
distinguish this activity from the type of sexual advance
contemplated by the law, their argument involves assumptions and
characterizations of facts not appropriately considered when
evaluating a motion to dismiss. For purposes of a 12(b)(6)
motion, Plaintiff has adequately alleged that she was subjected
to sexual advances and/or conduct of a sexual nature.
Second, Plaintiff alleged that she was discharged by Misero
because, among other things, she spurned the sexual advances
of Lifschutz. (Compl. at ¶ 17). Defendant argues that this
qualifying employment action cannot be imputed to Lifschutz for
purposes of a quid pro quo claim because the actual termination
was done by Misero, and Plaintiff has not alleged that Lifschutz
played any role in the firing. However, Plaintiff has alleged
that Lifschutz and Misero were "friends and confidantes [sic]."
(Compl. at ¶ 16). Thus, a fair reading of the Complaint could,
quite plausibly, suggest that Lifschutz and Misero were in
collaboration and that Misero's firing of Plaintiff was because
Plaintiff refused Lifschutz's sexual entreaties.*fn3 This
allegation is sufficient, and we will accordingly deny
Defendants' Motion with respect to the quid pro quo claims.
V. IIED Claim
Finally, Defendants argue that Plaintiff's IIED claim must be
dismissed on two separate grounds: (1) because IIED claims are
barred by the Pennsylvania Workmen's Compensation Act ("the WCA")
and (2) because Plaintiff has failed to state a cognizable claim
for IIED. We address each contention in turn.
A. Exclusivity of the WCA
In general, the WCA provides the exclusive remedy for all of
employees' work-related injuries. See 77 P.S. § 481(a).
However, there is an exception to that general rule for
intentional torts committed by third parties. See 77 P.S. §
411(1). The question, then, is whether Plaintiff's claim falls
within the statutory exception.
The WCA's statutory exception applies in very limited
circumstances. See, e.g., Matczak v. Frankford Candy & Chocolate
Co., 136 F.3d 933 (3d Cir. 1997) (holding that WCA bars IIED
claims arising out of employment relationship). Reflective of
those limited circumstances, the United States Court of Appeals
for the Third Circuit recently stated:
Because [sexual harassment] is like other workplace
hazards, we suspect that Pennsylvania would find IIED
claims based on this kind of harassment to be
preempted. But we cannot be sure, and we express no
opinion as to whether an IIED claim for harassment
more disconnected from the work situation would be
preempted, for example where a supervisor sexually
assaulted an employee or stalked her outside of work.
Durham Life Ins. Co. v. Evans,
because defendant sexually harassed plaintiff "in and out of the
workplace"); Price v. Philadelphia Elec. Co., 790 F. Supp. 97
(E.D.Pa. 1992) (same, because, in addition to racial epithets,
defendants preyed on plaintiff's personal fear of deer hunting);
Hoy v. Angelone, 456 Pa. Super. 596, 691 A.2d 476, 482 (1997)
(same, because defendant's sexual propositions and related
behavior were personal and directed toward plaintiff);
Schweitzer v. Rockwell Int'l, 402 Pa. Super. 34, 586 A.2d 383,
391 (1990) (same, because supervisor's sexual harassment of
employee was "personal in nature and not part of the proper
employer/employee relationship."). Indeed, there is disagreement
over whether "personal animus" misdescribes the nature of the
exception itself. Compare Hettler v. Zainy Brainy, Inc., No.
CIV.A. 99-3879, 2000 WL 1468550, at *5 (E.D.Pa. Sept.27, 2000)
(stating that "personal animus" of person committing intentional
act is a necessary element to the exclusivity exception) with
Krasevic v. Goodwill Indus. of Cent. Pa., Inc., 764 A.2d 561,
564-65 (Pa.Super. 2000) ("we conclude that a showing of personal
animus is not strictly required to implicate the third party
Notwithstanding the various interpretations, the critical
inquiry in determining the applicability of the third-party
attack exception is whether the attack was motivated by personal
reasons, as opposed to generalized contempt or hatred, and was
sufficiently unrelated to the work situation so as not to arise
out of the employment relationship. In this case, it appears that
most of Lifschutz's harassment — reprimands, criticisms, and
searching of Plaintiff's desk — clearly was work-related. In
addition, even those acts potentially outside the employment
context — asking for a date and making an obscene phone call —
were directed at Plaintiff while at work. Thus, it appears that
the WCA exception would not apply based on the Plaintiff's
allegations in the Complaint.*fn4 However, we need not decide
this question because, even assuming the third-party attack
exception does apply, Plaintiff has failed to state a cognizable
B. Cognizable Claim
To state a claim for IIED, a plaintiff must show extreme and
outrageous conduct that is deliberate or reckless and causes
severe emotional distress. See, e.g., Cox v. Keystone Carbon
Co., 861 F.2d 390, 395 (3d Cir. 1988). The conduct complained of
must be so outrageous, and so extreme in degree, as to "go beyond
all possible bounds of decency, and be regarded as atrocious, and
utterly intolerable in a civilized community." Clark v. Township
of Falls, 890 F.2d 611, 623 (3d Cir. 1989) (citations omitted).
Moreover, conduct arising in the employment context "will rarely
rise to the level of outrageousness necessary to support an
[IIED] claim." Hampton v. Tokai Fin. Servs., Inc., No. CIV.A.
98-5074, 1999 WL 83934, at *3 (E.D.Pa. Feb.18, 1999) (citing
Cox, 861 F.2d at 390); see also Andrews v. City of
Philadelphia, 895 F.2d 1469, 1487 (3d Cir. 1990).
Granting every inference to Plaintiff, her allegations still do
not suffice to state a cognizable IIED claim. The sum total of
Plaintiff's allegations are that Lifschutz (1) criticized her;
(2) publicly reprimanded her; (3) disparaged her professionally
and personally to others; (4) searched her desk at work; (5)
asked her out on a date twice; and (6) made a single "obscene"
phone call to her at work. Boorish and improper as this behavior
may be, it simply does not rise to the level
of outrageousness or atrocity necessary to state an IIED claim.
See, e.g., Andrews, 895 F.2d at 1487 (sexual harassment
allegations insufficient to maintain IIED claim); Hampton, 1999
WL 83934, at *3 (dismissing IIED claim arising from racist
remarks); Coney v. Pepsi Cola Bottling Co., No. CIV.A. 97-2419,
1997 WL 299434, at *1 (E.D.Pa. May 29, 1997) (dismissing IIED
claim and noting that "highly provocative racial slurs and other
discriminatory incidents do not amount to actionable outrageous
conduct."); Parker, 1992 WL 501273, at *12-*13 (dismissing IIED
claim arising from racial harassment); Ceesay v. Miller, Mason &
Dickenson, CIV.A. No. 90-2800, 1990 WL 121218, at *7 (E.D.Pa.
Aug.15, 1990) (same, arising from sexual and racial harassment).
In addition, as noted above, with the possible exception of the
phone call and request for a date, every act was within the
employment context. See Andrews, 895 F.2d at 1487; Cox, 861
F.2d at 390. Consequently, we will grant Defendants' Motion with
respect to Plaintiff's IIED claim.
For the foregoing reasons, we will grant Defendants' Motion
with respect to Title VII claims against Misero and Lifschutz and
with respect to the IIED claim. We will deny Defendants' Motion
with respect to Plaintiff's quid pro quo and retaliation claims.
An appropriate order follows.
AND NOW, this ____ day of December, 2000, upon consideration of
Defendant's Motion to dismiss (Document No. 3), and Plaintiff's
Response thereto, it is hereby ORDERED that Defendant's Motion is
GRANTED in part and DENIED in part.
Defendant's Motion if GRANTED with respect to Title VII claims
brought against Defendants Misero and Lifschutz individually
(Count I in part) and with respect to the intentional infliction
of emotional distress claim brought against all Defendants (Count
III in its entirety).
Defendant's Motion is DENIED with respect to Title VII and PHRA
discrimination and retaliation claims brought against Defendant
University Services (Counts I and II in part.)