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Lerew v. AT&T

January 7, 2008

LIZBETH LEREW, PLAINTIFF
v.
AT&T, INC., D/B/A CINGULAR WIRELESS, DEFENDANT



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

We are considering a motion to dismiss filed by Defendant AT&T, Inc., d/b/a Cingular Wireless ("AT&T"). (doc. 8). On August 7, 2007, Plaintiff, Lizbeth Lerew, a former AT&T employee, filed a complaint containing the following counts: (1) violation of her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); (2) violation of her rights under the Pennsylvania Human Relations Act, 43 Pa. C.S.A. § 951 et seq. ("PHRA"); (3) violation of defendant's "duty to supervise and control"; and (4) intentional infliction of emotional distress. (doc. 1). AT&T has moved to dismiss counts 3 and 4 for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). Upon careful consideration of the motion and the briefs, we will dismiss counts 3 and 4 with leave to amend count 4.

II. Background

On November 6, 2004, Lerew began working at AT&T as a Retail Sales Representative in the Capitol City Mall in Camp Hill, Pennsylvania. Lerew alleges that between January 2005 and August 2006, an AT&T employee sexually harassed her and created a hostile work environment. Specifically, Lerew alleges that on numerous occasions, Scott Ferguson, an AT&T Communications Specialist, grabbed Lerew in her crotch, rubbed himself against her, sent her text messages containing sexual content, and "told Plaintiff to cleanse herself so he could perform oral sex on her." (doc. 1, ¶ 6). Lerew alleges that Ferguson engaged in this conduct because she is a female. Additionally, she claims that the conduct was unwelcome, pervasive and regular, and created a hostile work environment. Id.

In June 2005, Lerew reported and complained about Ferguson's conduct to Jennifer Weigle, an AT&T supervisor with authority over Lerew and Ferguson. Id. ¶ 7. Lerew gave Weigle some of the offensive messages Ferguson had sent to her. Id. Weigle, however, did not take any action in response to Lerew's complaints because she had co-signed a loan for Ferguson. Id. ¶ 8. As a result, Weigle would have incurred financial loss if Lerew's allegations affected Ferguson's employment at AT&T. Id.

On or about January 12, 2006, Lerew filed a formal complaint about Ferguson's conduct with Kristen Severe, the District Manager of Cingular Wireless.*fn1 Id. ¶ 11. In response, Lerew was transferred to a smaller and less profitable store located a greater distance from her home. Id. ¶ 12. Lerew received less pay and incurred additional commuting expenses as a result of the transfer. Id. Lerew alleges that the discrimination and the hostile work environment at AT&T led to her constructive discharge in August 2006. Id. ¶ 13.

III. Discussion

A. Standard of Review

In considering Defendant's motion to dismiss, we must accept as true the factual allegations in the complaint and construe any inferences to be drawn from them in Plaintiff's favor. See Morrison v. Madison Dearborn Capital Partners III L.P., 463 F.3d 312, 314 (3d Cir. 2006). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, U.S., 127 S.Ct. 1955, 1974, 167 L.Ed.2d. 929 (2007) (rejecting "no set of facts" language from Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Detailed factual allegations are not required, id. at 127 S.Ct. at 1964-65; Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 564 (3d Cir. 2002), only a "short and plain statement" showing the right to relief. Pryor, 288 F.3d at 564 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) and quoting Fed. R. Civ. P. 8(a)(2)).

B. Lerew's Negligent Supervision Claim

Count III of Lerew's complaint alleges that AT&T violated its "duty to supervise and control" which we will construe as a claim for negligent supervision.*fn2 Lerew alleges that she reported Ferguson's misconduct to Weigle, their supervisor; however, Weigle did not take any action because she had co-signed a loan for Ferguson and any change to his employment status might have affected repayment of the loan. (doc. 1, ¶¶ 7, 8).

AT&T argues that the PHRA preempts Lerew's negligent supervision claim. According to AT&T, the negligent supervision claim "is premised upon her allegations of sexual harassment (which she seeks to remedy, inter alia, through the provisions of the PHRA)." (doc. 9, p. 4). Therefore, the claim "arises from" PHRA-prohibited conduct and falls within the exclusivity provision which provides that its remedies "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 complaint concerned." 43 P.S. § 962(b).

In response, Lerew argues that Weigle's failure to respond to Lerew's complaint is independent of the sexual harassment and hostile work environment allegations. (doc. 12, pp. 4-6). Instead, the negligent supervision claim "aris[es] from the failure to act on Plaintiff's ...


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