United States District Court, E.D. Pennsylvania
February 3, 2004.
JENNIFER LYNN McGOVERN, Plaintiff,
JACK D'S, INC., t/a JACK D'S RESTAURANT AND BANQUET HALL AND THE BACKDOOR BAR AND NIGHTCLUB; and GIACOMO DiMAIO AND LESLIE DiMAIO, husband and wife, Defendants
The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge
MEMORANDUM AND ORDER
Plaintiff has filed a complaint with this court against Defendants
Jack D's, Inc., ("Jack D's") and Giacomo and Leslie DiMaio ("the
DiMaios"), individually, for sexual harassment (Count I), sexual
discrimination (Count II), wrongful termination (Count III), intentional
infliction of emotional distress (Count IV), negligence (Count V), and
employment discrimination under the Pennsylvania Human Relations Act
(PHRA) (Count VI). Before us now is Defendants' Motion to Dismiss all
claims against the DiMaios, individually, and Counts III, IV, V, and VI
against Jack D's, and Defendants' Motion to Strike Plaintiff's demand
for a jury trial on her PHRA claim. For the reasons stated below we
grant Defendants' Motion to Dismiss in part and deny it in part, and deny
Defendants' Motion to Strike as moot.
I. Statement of Facts
Plaintiff has alleged the following facts. On or about January 1, 2003,
working as a waitress at Jack D's, a restaurant and bar located in
Hamburg, Pennsylvania. Jack D's is owned by Jack and Leslie DiMaio. From
the outset of her employment at Jack D's, Plaintiff was subjected to
sexual comments, innuendos, and groping by two male co-workers, Gaspare
DiMarco and Corey Cummings. Although Plaintiff repeatedly complained to
them about the conduct of her co-workers, the DiMaios did not investigate
the matter or take any sort of disciplinary action against DiMarco or
Cummings. The harassment continued and on February 12, 2003, DiMarco
forced Plaintiff into a dark area of the bar and raped her. Plaintiff
reported the incident to the DiMaios and police, whereupon Mr. DiMaio
called Plaintiff a "liar" and terminated her employment.
II. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a
claim in whole or in part "for failure to state a claim upon which relief
can be granted." In reviewing a motion to dismiss under Rule 12(b)(6),
the Court must accept as true all the allegations set forth in the
complaint and must draw all reasonable inferences in favor of
plaintiff's. See Ford v. Schering Plough Corp.,
145 F.3d 601, 604 (3d Cir. 1998). Dismissal is proper only if plaintiffs can
prove no set of facts in support of their claims which would entitle
them to relief. Id.
A. Defendants' Motion to Dismiss the DiMaios in their
Defendants argue that Plaintiff's complaint against the DiMaios
individually should be dismissed because piercing the corporate veil of
Jack D's is not warranted. The issue of whether a corporate veil may be
pierced is a matter of state law. See Star Creations Investment Co.,
Ltd. v. Alan Amron Development, Inc., 1995 U.S. Dist. LEXIS 11967,
*34 (E.D. Pa. 1995). In
Pennsylvania, there is no specific test for determining whether the
corporate veil may be pierced. Plastipak Packaging, Inc. v.
DePasquale, 75 Fed. Appx. 86, 88 (3d Cir. 2003), citing First
Realvest, Inc. v. Avery Builders, Inc., 410 Pa. Super. 572,
600 A.2d 601, 604 (Pa. Super. 1991). Rather, the courts employ a "totality of
the circumstances test." Plastipak, 75 Fed. Appx. at 88. Using
this test, Pennsylvania courts have generally been willing to pierce the
corporate veil "whenever necessary to prevent injustice." Id.,
citing Rinck v. Rinck, 363 Pa. Super. 593, 526 A.2d 1221, 1223
(Pa. Super. 1987). Such a broad standard has invited the
consideration of a variety of factors and theories when determining
whether to pierce the corporate veil. As we understand her complaint, the
principle theories which Plaintiff apparently relies on here are the
equitable doctrine of piercing the corporate veil, the participation
theory, and/or the "alter ego" theory.
Plaintiff argues that we should disregard the corporate entity in this
case because it was used to "defeat public convenience, justify wrong
either to third parties dealing with the corporation, or internally or
between shareholders (derivative suits), perpetrate fraud or similar
reprehensible conduct." Sam's v. Redevelopment Authority of New
Kensington, 431 Pa. 240, 244, 244 A.2d 779, 781 (Pa. 1968). This is
essentially the equitable doctrine of piercing the corporate veil, which
is invoked "to prevent the perpetration of wrong; to prevent its use as a
shield for illegal and wrongful conduct; or where its use, as a technical
device, brings about injustice or an inequitable solution so that justice
and public policy demand it be ignored." Wicks v. Milzoco,
503 Pa. 614, 620-21 (Pa. 1983). However, Plaintiff offers little to support
the application of this doctrine to this case, merely stating that "[i]n
the instant case, there has been both tortious and criminal conduct . . .
Even accepting the allegations contained in Plaintiff's
complaint as true, the existence of tortious and criminal conduct
alone is not sufficient grounds for piercing the corporate veil.
Pennsylvania courts generally find that "the corporate entity should be
upheld unless specific, unusual circumstances call for the application of
an exception." Zubik v. Zubik, 384 F.2d 267, 273 (3d Cir.
1967). Moreover, they have imposed limitations on the use of the
"equitable doctrine of piercing the corporate veil," declining to apply
it "where the rights of innocent parties are involved and the corporation
is used for a legal purpose, as otherwise the entire theory of the
corporate entity would be made useless." Wicks, 503 Pa. at
620-21. It is not enough, therefore, to allege that illegal or wrongful
activities occurred at a corporation. The corporation itself must have
been organized for the purpose of perpetrating the wrongs or shielding
them when they occur. Plaintiff has not alleged here that Jack D's was
created for an illegal purpose or that it exists to act as a shield for
wrongful conduct or injustice. Therefore, the equitable doctrine of
piercing the corporate veil does not compel us to pierce the corporate
veil in this case.
Although she does not articulate it as such, Plaintiff alternatively,
and indirectly, asserts the "participation theory," under which a
corporate officer can be held individually liable as an actor for
participating in tortious activity. See Wicks, 503 Pa.
at 621. The Supreme Court of Pennsylvania has endorsed the following
definition of "participation theory":
The general, if not universal, rule is that an
officer of a corporation who takes part in the
commission of a tort by the corporation is
personally liable therefor; but that an officer of
a corporation who takes no part in the commission
of the tort committed by the corporation is not
personally liable to third persons for such tort,
nor for the acts of other agents, officers or
employees of the corporation in committing it,
unless he specifically directed the particular act
to be done or participated, or cooperated therein.
Id. at 621-22, citing 3 A Fletcher,
Cyclopedia of the Law of Private Corporations § 1137, p.
207 (perm. ed. rev. 1975).
It appears from this definition that a corporate officer may only be held
individually liable if he or she has taken some sort of affirmative act
in furtherance of the alleged tort. Indeed, the court noted that
corporate officers may only be held liable for misfeasance, and not "mere
nonfeasance." Id. at 622. Accordingly, the Wicks
court reasoned that the fact that "a corporate officer should have known
the consequences of the liability creating corporate act . . . is
insufficient to create liability." Id. at 622-23. Since the
plaintiff in Wicks alleged not only that the corporate officers
of a home building company knew of an unreasonable risk, but that knowing
this, they still ordered construction to proceed, the court held
that such allegations were sufficient to defeat a motion to dismiss.
Id. at 623.
Returning to the case at hand, we find that Plaintiff has failed to
allege facts which would show that the DiMaios directed, participated, or
cooperated in tortious conduct. Plaintiff has alleged that tortious and
criminal conduct occurred, but she has not alleged that the DiMaios were
complicit in it. Furthermore, although Plaintiff has alleged that she
complained to the DiMaios and that they did nothing in response to
investigate or stop the harassment, we believe that this failure to act
does not rise to the level of affirmative action required by the court in
Wick, and is more akin to nonfeasance than misfeasance. As
such, we find that under the facts alleged, the DiMaios could not be held
individually liable under the "participation theory."
Finally, Plaintiff argues that the DiMaios should be held individually
liable under the "alter ego" theory. Under the alter ego theory, the
court may pierce a corporate veil in order to "prevent fraud, illegality
or injustice, or when recognition of the corporate entity would defeat
public policy or shield someone from public liability for a crime."
Kaplan v. First Options of Chicago. Inc., 19 F.3d 1503, 1521
(3d Cir. 1994). citing Carpenter's Health & Welfare Fund,
727 F.2d 279, 284 (3d Cir. 1983). A court will only proceed under this
theory "if it is also shown that a corporation's affairs and personnel
were manipulated to such an extent that it became nothing more than a
sham used to disguise the alter ego's use of its assets for his own
benefit in fraud of its creditors." Kaplan at 1521. Indicators
that a corporation is an alter ego of an individual include:
failure to observe corporate formalities, non
payment of dividends, insolvency of the
debtor corporation at the time, siphoning of funds
of the corporation by the dominant shareholder,
non functioning of other officers or
directors, absence of corporate records, and the
fact that the corporation is merely a facade for
the operations of the dominant stockholder or
Id., citing United States v. Pisani, 646 F.2d 83
88 (3d Cir. 1981).
In furtherance of her claim that the DiMaios are alter egos of Jack
D's, Plaintiff alleges in her Amended Complaint that
8. The assets of Individual Defendants, Jack
DiMaio and Leslie DiMaio, are one and the same as
those of corporate Defendant, and the Individual
Defendants and Corporate Defendant are alter egos
of each other.
9. Corporate Defendant, is so closely affiliated
with as to be an alter ego of the Individual
Defendants. The actions of one are attributable,
in whole or in part to the actions of the other.
Defendants argue that these statements are insufficient to
withstand a Motion to Dismiss because they are conclusions of law and
thus do not contain facts which could support a claim against the
DiMaios. Defendant analogizes the instant case to Lumax Industries
v. Mary Carol Aultman, 543 Pa. 38, 669 A.2d 893 Pa. 1995), in which
the Pennsylvania Supreme Court held that a demurrer was improperly denied
where the plaintiff merely alleged that the individual was the only
person involved in the corporation and acted on behalf of herself and
used the corporation to unjustly seek protection from the corporate form.
Id. at 41. However, as Plaintiff correctly
points out, Pennsylvania state courts require "fact pleading," which is a
higher standard than the "notice pleading" required in federal courts.
See Fed.R.Civ.P. 8. In support of this argument, Plaintiff
cites a recent case from this court, in which the court denied a motion
to dismiss an alter ego claim because "a plaintiff is not required to
specifically plead the alter ego theory." Meshkov v. UNUM Provident
Corp., 209 F. Supp.2d 459, 461 (E.D. Pa. 2002). In Meshkov,
the court found that it was sufficient that the plaintiff alleged that
the individual corporate defendants had acted on behalf of each other.
Id. at 461. The court observed that, although the plaintiff might
ultimately be unable to prove facts to justify piercing the corporate
veil under the alter ego theory, it would have been premature to dismiss
the plaintiff's alter ego claim at that time. Id.
Accordingly, we believe it would be premature to dismiss Plaintiff's
alter ego claim at this stage in the instant case. Defendants are correct
that Plaintiff states a conclusion of law when she alleges that Jack D's
and the DiMaios are alter egos of each other. However, we believe her
allegation that the actions of one are attributable to the other
constitutes sufficient notice pleading to withstand a Motion to Dismiss.
Although we have some doubts about Plaintiff's alter ego claim, it would
be premature to dismiss the claims against the DiMaios without allowing
Plaintiff to proceed with discovery. Thus we deny Defendants' Motion to
Dismiss all claims against the DiMaios individually on this basis.
b. Defendants' Motion to Dismiss Counts I and II Against the
Defendants move to dismiss Counts I and II, alleging Title VII
violations, against the DiMaios. Defendants rely on Sheridan v. E.I.
DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996), to
support their broad assertion that "[q]uite simply, the Third Circuit has
held that individuals cannot be sued under Title VII." However, the Third
Circuit has not settled the
issue before us as firmly as Defendants would have us believe.
Although the court stated quite clearly in Sheridan that it was
"persuaded that Congress did not intend to hold individual
employees (emphasis added) liable under Title VII," it said
nothing about individual owners. Id. Hence the additional district court
cases cited by Defendants to support their argument that if individual
employees cannot be held liable, individual owners should not
held liable either. See Milliner v. Enck, 1998 U.S. Dist. LEXIS
6651 (E.D. Pa. 1998); Harper v. Casey, 1996 U.S. Dist. LEXIS
9303 (E.D. Pa. 1996); Caplan v. Fellheimer Eichen Braverman &
Kaskey, 882 F. Supp. 1529 (E.D. Pa. 1995); Clarke v.
Whitney, 907 F. Supp. 893, 895 (E.D. Pa. 1995). The most oft cited
reason for this rationale is that since Congress made it clear that it
wanted to protect small business from liability under Title VII, it
certainly would not have wanted individual business owners to be exposed
to liability. See Caplan, 882 F. Supp. at 1531. We believe that
this is sound reasoning and we will adopt it here. Moreover, in light of
the fact that Plaintiff acknowledges in her brief that there is no
individual liability under Title VII, it is safe to assume she concedes
the point. Thus we will grant Defendants' Motion to Dismiss Plaintiff's
Title VII claims against the DiMaios individually.
c. Defendants' Motion to Dismiss Plaintiff's Wrongful
Defendants argue that Plaintiff's wrongful termination claim should be
dismissed because it is preempted by the Pennsylvania Human Relations Act
(PHRA). Pennsylvania courts have held that where a cause of action
involves a violation of public policy for which a remedy already exists
by statute, a common law cause of action will not be recognized. See
Murray v. Commercial Union Ins. Co., 782 F.2d 432, 437 (3d Cir.
1986). However, where an alleged tort claim is procedurally and
functionally different from the statute in question, it is not preempted.
See Keck v. Commercial Union Insurance Co., 758 F. Supp. 1034,
1038 (M.D. Pa. 1991). citing Schweitzer v. Rockwell
Int'l. 402 Pa. Super. 34, 586 A.2d 383, 388 (Pa. Super. 1990).
Having analyzed the outcome of several precedential cases pertaining to
PHRA preemption, our sister court has concluded that in Pennsylvania "a
common law claim will not be preempted by the PHRA if it is factually
independent of the discrimination claim." Keck, 758 F. Supp. at
1038. Thus, where, as is the case here, Plaintiff alleges that the
wrongful termination constituted a public policy violation in that she
was retaliated against for reporting a crime to the police, and not
because of discrimination, we will not deem the claim automatically
preempted by the PHRA. However, we must now consider whether Plaintiff
has alleged facts pertaining to her termination which, if proven, could
rise to the level of a public policy violation.
Although Pennsylvania recognizes the at will employment
doctrine, an exception to the doctrine is made when an employer
terminates an employee for reasons which violate public policy. See
Hennessy v. Santiago, 708 A.2d 1269, 1273 (Pa. Super. 1998).
However, the public policy exception is a narrow one and is generally
limited to cases in which (1) an employer requires an employee to commit
a crime; (2) an employer prevents an employee from complying with a
statutory duty; or (3) the discharge of the employee is specifically
prohibited by statute. Id. Plaintiff has not supplied any cases
to support her claim that Defendants' decision to terminate her for
reporting to the police that she was raped by a co-worker either falls
into one of the exceptions cited above or presents an additional public
policy violation previously recognized by the courts. Moreover,
Pennsylvania case law dictates that we refrain from making such a
determination, since, with the exception of the three situations outlined
above, determinations of public policy are matters best left to the
legislature. See Donahue v. Federal Express Corp.,
2000 Pa. Super. 146, 753 A.2d 238 (Pa. Super. 2000): see also Geary
v. United States Steel Corp., 456 Pa. 171, 183, 319 A.2d 174 (
Pa. 1974): Hennessy, 708 A.2d at 1274: Hunger v. Grand Cent.
Sanitation. 447 Pa. Super. 575, 670 A.2d 173, 176 (
Pa. Super. 1996): Holewinski v. Children's Hosp., 437 Pa. Super. 174,
649 A.2d 712, 715 (Pa. Super. 1994); Krajsa v. Keypunch,
Inc., 424 Pa. Super. 230, 622 A.2d 355, 359-60
(Pa. Super. 1993). Furthermore, if there is any doubt as to whether this
specific set of facts would be deemed a public policy violation by the
Pennsylvania courts, we need only consider the facts of the Hennessy
case. In Hennessey, the plaintiff, who was a counselor at a group
home for the mentally disabled, complained that she was wrongfully
terminated by her employer for assisting a resident in reporting a rape
perpetrated by another resident. See Hennessey, 708 A.2d at
1272. The court held that the plaintiff's termination was not a violation
of public policy because there was no requirement or authority that
required the plaintiff to report the rape at all. Id. at 1274.
As in Hennessey, there was no statutory requirement here that
Plaintiff report the alleged rape. In the absence of a statutory or
judicially recognized exception to the presumption of at-will employment,
we must therefore dismiss Plaintiff's wrongful termination claim for
failure to state a claim upon which relief can be granted.
d. Defendants' Motion to Dismiss Plaintiff's Negligence Claim
Defendants argue that Plaintiff's negligence claim should be dismissed
because it is preempted by the PHRA. As stated above, with regard to
Defendants' Motion to Dismiss Plaintiff's wrongful termination claim,
common law tort claims which are functionally brought under the same
circumstances as a statutory claim are preempted by the relevant statute.
See Murray, 782 F.2d at 437. However, Plaintiff and Defendants
cite several recent cases which
reach opposite conclusions as to whether negligent supervision
claims specifically are considered preempted by the PHRA.
Plaintiff cites to Armbruster v. Epstein, 1996 U.S. Dist.
LEXIS 7459, * 13-14 (E.D. Pa. 1996), citing Keck, 758 F. Supp.
at 1039, for the proposition that if the facts alleging discrimination
would also support an independent claim of negligence, a finding of
preemption is not appropriate. With regard to discrimination, the court
cites Keek's holding that "`if all or part of the facts that
would give rise to a discrimination claim would also independently
support a common law claim, the common law claim is not preempted by the
PHRA and need not be adjudicated within its framework.'" Id.
Moreover, the court relies on the example given by the court in
Keck that "`if an employer effected all the elements of
intentional infliction of emotional distress upon an employee, and chose
to do so because the employee was black, the employer may be found liable
for discrimination as well as intentional infliction of emotional
distress.'" Id. Based on its heavy reliance on the discussion
in Keck, the Ambruster court then held that neither
the negligent or intentional emotional distress claims made by the
plaintiff were preempted. Id.
The court in Lezotte v. Allegheny Health, Education, and Research
Foundation, 1998 U.S. Dist. LEXIS 6119 (E.D. Pa. 1998), also cited
in Plaintiff's brief, similarly relies on Keck in holding that
the PHRA does not preempt intentional infliction of emotional distress
claims. Although we are concerned here with a negligence claim, Plaintiff
presumably wishes to apply the reasoning quoted in Lezotte that
"preventing otherwise valid tort law claims `actually frustrates the
purpose of the statute [the PHRA], the prevention and remediation of
discrimination.'" Id., citing Schweitzer, 586 A.2d at
389. Plaintiff also cites Pryor v. Mercy Catholic Medical
Center, 1999 U.S. Dist. LEXIS 16084, *10 (E.D. Pa. 1999), but we are
uncertain as to how it is applicable to the issue at hand, since it
holds that the Pennsylvania Workmen's Compensation Act (WCA) does not
preempt negligent supervision claims. Thus it appears that Plaintiff has
cited one case, Armbruster, which directly supports her
argument that negligent supervision claims are not preempted by the PHRA,
and one case which supports the proposition that intentional torts are
not preempted by the PHRA.
Defendants, on the other hand, cite several cases to support their
claim that negligent supervision claims are preempted by the PHRA. In
Fantazzi v. Temple, 2001 U.S. Dist. LEXIS 11598, *5-6 (E.D.
Pa. 2001), the court drew upon the language of the PHRA in reaching its
conclusion that the PHRA preempts negligent supervision claims.
Id. Specifically, the PHRA states that "`the procedure herein
provided shall, when invoked, be exclusive and the final determination
therein shall exclude any other action, civil or criminal based on the
same grievance of the complainant concerned.'" Id.,
citing 43 Pa. Stat. Ann. § 962(b). According to the court,
"[t]his provision was intended by the Pennsylvania legislature to exclude
common law tort claims based upon discrimination which could be remedied
under the Act. Id., citing Murray. 782 F.2d at 437.
The court went on to say that because the plaintiff relied on the same
set of facts to support both his discrimination and negligent supervision
claims, the negligent supervision claim must be preempted by the PHRA.
The other two cases cited by Defendants, and relied on by the court in
Fantazzi, are less instructive in explaining their holdings
that negligent supervision claims are preempted by the PHRA, but are
nonetheless consistent with Fantazzi. In Snead v. Hygrade
Food Products Assoc., 1998 U.S. Dist. LEXIS 20296 (E.D. Pa. 1998),
the court, noting that the plaintiff did not address the issue in its
brief and, citing to Coney v. Pepsi Cola Bottling Co., 1997
U.S. Dist. LEXIS 7722
(E.D. Pa. 1997), stated that "[i]t is clear that these claims are
barred by the WCA and the PHRA." In Coney, the court made a
similarly cursory statement that negligent supervision claims are
preempted by the PHRA, this time relying on Murray for the
proposition that "the PHRA precludes tort claims premised on
discrimination that may be remedied under the Act," 782 F.2d at 437, and
Keck, for the proposition that a "common law claim is preempted
by the PHRA unless factually independent of discrimination claim."
758 F. Supp. at 1039.
Although this litany of cases is admittedly far from clear in
identifying generally which torts are preempted by the PHRA, we believe
that the weight of authority cuts in favor of preemption with regard to
negligent supervision claims. The crux of both the Keck and
Murray cases is that where a statute provides a remedy for a
certain type of injury, a common law action designed to redress the same
injury is rendered superfluous. Thus unless a plaintiff can offer some
other independent set of facts to support a claim not otherwise covered
by the PHRA, such a claim is subject to preemption. Here, since Plaintiff
has alleged the same set of facts to support her negligence claim as for
her sexual harassment claim, we find that her negligence claim is
preempted and we grant Defendants' Motion to Dismiss it.
e. Defendants' Motion to Dismiss Plaintiff's Intentional
Infliction of Emotional Distress Claim
Defendants argue that Plaintiff's intentional infliction of emotional
distress claim should be dismissed because Plaintiff has failed to state
a claim upon which relief can be granted. In order for a claimant to
recover for intentional infliction of emotional distress, the alleged
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.'" Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745,
754 (Pa. 1998), citing Buczek v. First National Bank of
Mifflintown. 366 Pa. Super. 551, 558 (Pa. Super. 1987). In the
context of employment, courts are extremely reluctant to allow
intentional infliction of emotional distress as a basis for recovery.
See Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir.
As Plaintiff acknowledges in her brief, sexual harassment alone does
not generally rise to the level of outrageousness necessary to constitute
intentional infliction of emotional distress. See Hoy, 720 A.2d
at 755. Accordingly, in Hoy, the court denied the plaintiff's
intentional infliction of emotional distress claim because it held that
the defendant's conduct, which included sexual propositions, physical
conduct, and the posting of sexual pictures, was not sufficiently
outrageous. Id. However, sexual harassment by an employer may be deemed
sufficiently outrageous where an employer not only acquiesced in it, but
actually participated in it, encouraged it, and retaliated against an
employee. See Hare v. H&R Industries, 2003 U.S. App. LEXIS
10304, **15 (3d Cir. 2003).
In the instant case, Plaintiff does not allege that Defendants
participated in sexually harassing her, nor does she allege that they
retaliated against her for complaining about the harassment. Rather, she
alleges that they "acquiesced in the harassment, made light of McGovern's
[Plaintiff's] complaints, and ignored McGovern's pleas for help." Pl.'s
Reply Br. at 28. Thus we distinguish this case from the circumstances in
H&R Industries, in which the supervisors actually
participated in the harassment. Consequently, we do not believe that
Defendants' alleged acquiescence to Plaintiff's sexual harassment is
sufficiently outrageous to state a claim upon which relief could be
granted. Having disposed of this claim on these grounds, we need not
consider whether Plaintiff's intentional infliction of emotional distress
claim is preempted by the Pennsylvania Workmen's Compensation Act.
f. Defendants' Motion to Dismiss Plaintiff's PHRA Claim
Defendants move to dismiss Plaintiff's PHRA claim on the grounds that
Plaintiff has failed to exhaust administrative remedies, as required by
the Act, before asserting a cause of action in court. The PHRA requires,
and the Supreme Court of Pennsylvania has interpreted it to require, that
in order to bring a complaint under the PHRA, a complaint must first be
filed with the Pennsylvania Human Resources Commission (PHRC). See
Clay v. Advanced Computer Applications, Inc., 522 Pa. 86,
559 A.2d 917, 920 (Pa. 1988), citing 43 P.S. § 962(b). Once a
complaint is filed, the PHRC retains exclusive jurisdiction over the
matter for one year for purposes of investigation and conciliation of the
matter. Id. Defendants argue that since Plaintiff filed her
discrimination charge with the Equal Employment Opportunity Commission
(EEOC) on or about April 3, 2003, and since notice that cross
charges were filed with the PHRC was not received by Defendants until May
23, 2003, Plaintiff did not meet the one year exclusive jurisdiction
requirement when she filed a complaint with this court on October 27,
Plaintiff does not deny that she has failed to comply with the one year
exclusive jurisdiction period. However, she argues that she was compelled
to file prematurely, since, once she received her Notice of Right to Sue
Letter from the EEOC on June 11, 2003, she had only 90 days to file a
civil action, and that if she did not include all claims arising from
this controversy at that time, such as the PHRA claim, her right to
pursue them would have been lost under the doctrine of res
judicata. See Alien v. McCurry, 449 U.S. 90, 94 (1980).
Plaintiff cites no cases to support the notion that exceptions to the
PHRA administrative requirements should be granted in such an instance.
When this court has been faced with this difficulty in the past, it has
the motion to dismiss for failure to exhaust administrative
remedies, but granted the plaintiff leave to amend the complaint in
accordance with the one year rule, once the one year period has elapsed.
See Padgett v. The YMCA of Philadelphia, 1998 U.S. Dist. LEXIS
18693, *15 (E.D. Pa. 1998): McBride v. Bell of Pennsylvania. 1989 U.S.
Dist. LEXIS 7177, *5-6 (E.D. Pa. 1989). Since we believe Plaintiff's PHRA
claim would otherwise survive a motion to dismiss, we will grant
Defendants' Motion to Dismiss Plaintiff's PHRA claim at this time, but
grant Plaintiff leave to amend her complaint following the one year
anniversary of the date on which the PHRC was notified of Plaintiff s
g. Defendants' Motion to Strike Plaintiff's Demand for a Jury
Trial under the PHRA
Since we have granted Defendants' Motion to Dismiss Plaintiff's PHRA
claim, Defendants' Motion to Strike Plaintiff's demand for a jury trial
of her PHRA claims is rendered moot and we will deny it as such.
Defendants' Motion to Dismiss is denied in part and granted in part.
Specifically, Defendants' Motion to Dismiss all claims against the
DiMaios individually is denied, since Plaintiff has alleged sufficient
facts at this stage to support her alter ego theory of piercing the
corporate veil. However, Plaintiff's Title VII claims, Counts I and II,
are dismissed as to the DiMaios, because such claims are barred against
individuals business owners. Plaintiff's wrongful termination,
negligence, intentional infliction of emotional distress, and PHRA claims
are dismissed as to all Defendants for failure to state a claim upon
which relief can be granted. Finally, Defendants' Motion to Strike
Plaintiff's demand for a jury trial for her PHRA claim is denied as moot.
An appropriate order will follow.
AND NOW, this 3rd day of February, 2004, upon
consideration of Defendants' Motion to Dismiss Plaintiff's Amended
Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) and Motion to Strike
Pursuant to Fed.R.Civ.P. (12)(f), filed on December 29, 2003, and
Defendants' Memorandum of Law in Support of Their Motion to Dismiss
Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) and
Motion to Strike Pursuant to Fed.R.Civ.P. (12)(f), filed on December
29, 2003; Reply of Plaintiff, Jennifer Lynn McGovern, In Opposition to
Motion to Dismiss and Motion to Strike of Defendants, filed on January
15, 2004; and Defendants' Reply Brief, filed on January 27, 2004, it is
hereby ORDERED consistent with the foregoing Memorandum that Defendants'
Motion is GRANTED in part and DENIED in part as follows:
1) Defendants' Motion to Dismiss Plaintiff's Title
VII claims as to the DiMaios individually is
GRANTED, and said claims are dismissed with
2) Defendants' Motion to Dismiss Plaintiff's
wrongful termination, intentional infliction of
emotional distress, and negligence claims as to
all Defendants is GRANTED and said claims are
dismissed with prejudice;
3) Defendants' Motion to Dismiss Plaintiff's PHRA
claim is GRANTED and said claim is dismissed
without prejudice to Plaintiff's right to reassert
this claim when the one year period has elapsed;
4) Defendants' Motion to Strike Plaintiff's Demand
for a Jury Trial for her PHRA claim is DENIED at
this time as moot;
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