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United States District Court, E.D. Pennsylvania

May 27, 2004.

RODALE, INC. and TOM BEUSSE, Defendants

The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge


Plaintiff David Taylor filed a complaint against Defendants Rodale, Inc. ("Rodale") and Tom Beusse ("Beusse"), alleging employment discrimination in violation of the Age Discrimination in Employment Act (ADEA), 42 U.S.C. § 621 et seq. and the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. Defendants now move to dismiss the PHRA claims against them for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). For the reasons stated below, we grant Defendants' Motion to Dismiss.

I. Facts

  For purposes of this motion, we accept as true the facts as alleged in Plaintiff's Complaint. Plaintiff was hired by Defendant Rodale in August 1993 as Managing Editor of Rodale's Scuba Diving ("RSD") magazine. He was promoted to Executive Editor of RSD in April 1995. On February 28, 2000, Rodale hired Defendant Beusse as Senior Vice President/Managing Editor of the Sports Group. Beusse's duties included oversight of RSD. Plaintiff alleges that Beusse, and other Rodale employees acting at Beusse's direction, repeatedly harassed Plaintiff and made unfavorable employment decisions that culminated in his termination. Specifically, Plaintiff alleges that he was treated differently than younger colleagues, that he was subjected to an investigation by a human resources representative, that there were alterations to his incentive payment structure, and that he was terminated in favor of a younger employee. Plaintiff alleges that the harassment and unfavorable employment actions were motivated by his age, as evidenced by statements made by Beusse to other employees, as well as by the reasons offered by Rodale for the termination.

  It is significant that during the time of his employment, Plaintiff lived and worked in Savannah, Georgia. Beusse, on the other hand, worked in Emmaus, Pennsylvania, where Rodale has its principal place of business.

  II. Procedural History

  Following his termination, Plaintiff filed employment discrimination claims with the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Rights Commission (PHRC). Although neither agency took action on Plaintiffs behalf, he received a "right to sue" letter from each. Notably, the PHRC refused to accept his claim because it was "clearly not within the jurisdiction of the Pennsylvania Human Rights Commission." (PL's Compl., Ex. 2.) Plaintiff now seeks relief under the ADEA and PHRA. Defendants move to dismiss the PHRA claims, on the grounds that the PHRA does not apply to their actions because Plaintiff lived and worked outside the state of Pennsylvania.

  III. Statement of Jurisdiction

  Under 28 U.S.C. § 1331, this court has jurisdiction to hear claims alleging violations of federal law. Count I of Plaintiff's complaint concerns an alleged violation of the federal ADEA. As for Plaintiffs claims under the PHRA, we exercise our supplemental jurisdiction to hear these claims pursuant to 28 U.S.C. § 1367(a), since they arise out of the same case or controversy as the ADEA claim.

  IV. Standard of Review

  Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a claim "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 the plaintiff. See Ford v. Schering-Plough Corp., 145 F.3d 601, 604 (3d Cir. 1998). Dismissal is proper only if the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Id.

  V. Discussion

  Defendants argue that the PHRA claims should be dismissed because the PHRA does not apply extraterritorially to individuals working outside of Pennsylvania. Plaintiff, however, contends that extraterritorial application is not required because the alleged discriminatory practices occurred in Pennsylvania, where his supervising vice president, Beusse, was located.

  We note at the outset that the PHRC determined that it lacked jurisdiction over Plaintiff's complaint. This decision carries significant weight with this Court because Pennsylvania courts accord great deference to the interpretation of a statute by an agency charged with its execution. See Pennsylvania Ass'n of Rehabilitation Facilities v. Foster, 624 A.2d 270, 272 (Pa. Commw. 1993) ("The interpretation of a statute by the agency charged with the statute's administration is entitled to great weight and should not be disregarded unless it is clearly erroneous."). However, even if we declined to rely on the PHRC's determination, we would still find that Plaintiff has failed to state a claim upon which relief can be granted.

  Both sides agree that this issue is one of first impression, and we are unaware of any Pennsylvania cases that address the applicability of the PHRA to out-of-state employees when the discriminatory practices are directed by supervising employees in Pennsylvania. Our task is therefore to anticipate how the Pennsylvania Supreme Court would rule if the issue were before them. See Smith v. Calgon Carbon Corp., 917 F.2d 1338. 1341 (3d Cir. 1990). Because Pennsylvania courts generally interpret the PHRA in accordance with its federal counterparts, we will look to cases which interpret the ADEA for guidance.*fn1 See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) ("Pennsylvania courts . . . generally interpret the PHRA in accord with its federal counterparts. . . .").

  Defendant argues that because the PHRA does not explicitly state that it applies to nonresidents who work out-of-state, the state legislature could not have intended the statute to have extraterritorial effect.*fn2 Additionally, federal courts have long recognized a presumption against extraterritorial application of federal legislation. See EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991). This presumption reflects a standard of comity toward other countries by precluding undue interference with the laws of foreign countries when the conduct at issue occurs outside of the United States. The same consideration would seem to preclude us from extending the reach of the PHRA to conduct that occurs in other states in the absence of clear legislative intent to the contrary. Plaintiff concedes that he does not seek to have the PHRA apply extraterritorially. Instead, he argues that the circumstances of his case do not require extraterritorial application. Thus the dispositive issue here is whether the discriminatory conduct occurred in Pennsylvania, not whether the PHRA has extraterritorial application as a general matter.

  This Court has previously considered the question of whether an employment action, in the context of the PHRA takes place within the state's jurisdiction. See Denty v. Smith Kline Beecham Corp., 907 F. Supp. 879, 886 (E.D. Pa. 1995), aff'd, 109 F.3d 147 (3d Cir. 1997). Although the PHRA does not expressly address the issue, Denty applied the rationale utilized when analyzing claims under the ADEA. Under the ADEA, the "site of the workplace determines the applicability of the ADEA." Denty, 879 F. Supp. at 884. Thus, workers outside the United States are not covered by the ADEA, even if the discriminatory decision was made by management working in the United States. See, e.g., Wolf v. J.I. Case Co., 617 F. Supp. 858, 863 (E.D. Wis. 1985) ("The plaintiffs allegation that he was supervised and controlled by top management of the defendants based in the United States is not of any legal significance so long as the plaintiff performed his work abroad.").

  We see no reason why the PHRA should be interpreted differently than the ADEA with respect to determining the location of the discriminatory act. Were we to accept Plaintiff's position that the relevant inquiry is where the decision was made or where the decision-makers were located, it would significantly hinder the applicability of the PHRA. Such a conclusion could cause the protection afforded to an individual working in Pennsylvania to change during the course of her employment depending on where her supervisors happened to be. Indeed, under Plaintiff's theory, a Pennsylvania employee might not be able to claim PHRA protection if her supervisors were based in Georgia. We reject such an interpretation of the PHRA as unsupported by the legislative text or by relevant precedent.*fn3

  The relevant location here with regard to the PHRA is the location of Plaintiff's workplace, not Beusse's location. Plaintiff admits in his Complaint that he worked in Georgia at the time of his employment and that he was informed of his termination in Georgia. Plaintiff has not alleged any facts supporting an inference that he was employed in Pennsylvania and therefore that the termination and other discriminatory actions occurred there. Thus, there is no basis for this court to grant relief under the PHRA, and the PHRA claim against Rodale will be dismissed for failure to state a claim upon which relief can be granted.

  Plaintiff's claim against Beusse is predicated on his aiding and abetting Rodale's discriminatory practices in violation of 43 P.S. § 955(e). Although in arguing the motion Defendants do not distinguish between the § 955(a) claim against Rodale and the § 955(e) claim against Beusse, we feel that the differences in the two PHRA provisions warrant additional consideration. As with the § 955(a) claim against Rodale, Pennsylvania courts have been silent on whether the provision applies to those who aid and abet the termination of out-of-state employees. However, we find it unreasonable to extend § 955(e) protection to an employee who is not subject to protection under the other subsections of § 955, even if the aider and abettor was located in-state. As Defendants have noted, the language of the PHRA suggests that it contemplated only the protection of residents and workers in Pennsylvania. The "Findings and Declaration of Policy" section of the PHRA states, in part:

Such discrimination foments domestic strife and unrest, threatens the rights and privileges of the inhabitants of the Commonwealth, . . . deprives large segments of the population of the Commonwealth of earnings necessary to maintain decent standards of living, . . . thereby threatening the peace, health, safety and general welfare of the Commonwealth and its inhabitants.
43 P.S. § 952(a).

  This section indicates that the PHRA is intended only to protect the inhabitants of the state from the negative effects of discrimination. We therefore decline to extend the PHRA to encompass discrimination against individuals who neither live nor work in Pennsylvania, even if the action was aided and abetted by in-state actors. The liability of Beusse, if any, must be based upon the liability of Rodale in terminating Plaintiff or altering the conditions of his employment. For the forgoing reasons, we find that there is no basis for relief on Plaintiff's claim against Rodale, and consequently, the claim against Beusse will be dismissed as well.

  VI. Conclusion

  Defendants' Motion to Dismiss Counts II and III of the action is granted because we find the Pennsylvania Supreme Court would not interpret the PHRA to protect individuals who neither work or live in Pennsylvania from discriminatory conduct by in-state actors. An appropriate order follows.


  AND NOW, this 27th day of May 2004, upon consideration of Defendants' Motion to Dismiss Counts 2 and 3 of Plaintiff's Complaint under Fed.R.Civ.P. 12(b)(6) and Defendants' supporting Memorandum of Law, filed May 7, 2004; Plaintiffs Memorandum of Law in Opposition to Defendants' Motion to Dismiss Counts II and III of Plaintiff's Complaint, filed May 21, 2004; and Defendants' Reply Brief in Support of Defendants' Partial Motion to Dismiss, filed on May 26, 2004, it is hereby ORDLRLD that Defendants' Motion to Dismiss Counts II and III of the complaint is GRANTLD, and Counts II and III are hereby dismissed with prejudice.

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