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Faust v. Storm

July 15, 2009



Before the Court are Defendants RCN Corp. and Jodi Klinger's Motions to Dismiss (Doc. Nos. 11, 12). For the following reasons, Defendant RCN's Motion is denied, and Defedant Jodi Klinger's Motion is denied in part and granted in part. Specifically, counts one and two are dismissed as to Defendant Jodi Klinger only in so far as those counts allege violations of Title VII. All other counts remain.


In February 2007, Defendant RCN Corp.*fn1 ("RCN") hired Plaintiff Jonjere C. Faust ("Faust") to work in its regional office in Bethlehem, Lehigh County. (Id. ¶ 6.) She was the only female employee in that office. (Id. ¶ 7.) Defendants Kurt Strorm ("Storm") and Jose Matos ("Matos") were managers or supervisors of RCN's regional office in Bethlehem and had "direct supervisory responsibility over" Faust. (Id. ¶¶ 2-3). Defendant Jodi Klinger ("Klinger") was also an employee of RCN. (Id. ¶ 4.) Though not described as a manager or supervisor, (Id. ¶ 4), Faust alleges that Klinger had a supervisory position within RCN.*fn2 (Id. ¶ 11.)

Faust alleges that she was discriminated against because of her sex "in the terms and conditions of her employment." (Id. ¶¶ 7, 16.) She was allegedly "given less desirable sales assignments, in terms of their profitability and location." (Id. ¶ 7.) She was also allegedly subjected to (1) comments "about her lack of sales and how she should be getting more sales from male clientele due to her physical appearance as an attractive female" and (2) "statements having a double-meaning, one of which had obvious sexual overtones." (Id. ¶¶ 7-10, 16.) Further, according to Faust, the harassment and "abuse culminated in an incident, taking place on or about March 12, 2007." (Id. ¶ 11.) On that day, "Defendants [Storm, Matos, and Klinger] taking advantage of their supervisory positions, asked [Faust] to report to an individual office. Upon her entrance, the door was shut and physically guarded by [Storm]. Defendants confronted [Faust] and placed duct tape over [her] mouth, telling her that they were doing it so that she would not be able to speak and would have to listen to them." (Id.) Faust alleges that all three individually-named Defendants acted in conspiracy with each other. (Id. ¶¶ 2-4).

Faust stopped reporting for work after the incident. She alleges that she was constructively discharged "as a result of the gender discrimination and objectively unreasonable and sexually hostile work environment, and [RCN's] failure in this regard." (Id. ¶ 13.) Faust alleges that she made at least three phone calls to RCN's Human Resources department during her employment to complain about her treatment. (Id. ¶ 12.) However, she did not speak to anyone until a week after she stopped reporting for work when someone from RCN called her to find out why she stopped reporting for work. (Id. ¶¶ 12, 14.) Faust also alleges that she physically visited RCN's Human Resources employee's office multiple times but found no one there. (Id. ¶ 12.) According to Faust, RCN's written policies on sexual harassment were insufficient and not enforced. (Id. ¶¶ 12, 39, 43.)

Faust is suing RCN, Klinger, Matos, and Storm for violations of Title VII, 42 U.S.C. §§ 2000e to 2000e-17, and the Pennsylvania Human Relations Act, 43 P.S. §§951-963 ("PHRA"). She is also suing all four Defendants for assault, battery, false imprisonment, and the intentional infliction of emotional distress. Klinger is moving that the Court dismiss the entire Complaint as to him. RCN is moving that the Court dismiss counts two through six as to it.


"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951 (2009) (citations and quotations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id."The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id.


A. Count One - Sexual Harassment in Violation of Title VII and the PHRA as to Klinger Count one Alleges Violations of Both Title VII and the PHRA as to all Defendants

(Compl. ¶ 67.) Klinger moves that the Court dismiss count one against him because (1) there is no individual liability under Title VII and (2) there is no individual liability under the PHRA for non-supervisory employees. (Klinger Br. 3-5.) As to the Title VII claim, Faust concedes that Klinger cannot be held liable. (Pl.'s Br. re Klinger 7.) Indeed, there is ample caselaw supporting the proposition that "Congress did not intend to hold individual employees liable under Title VII." Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1078 (3d Cir. 1996); McGovern v. Jack D's Inc., No. 03-5447, 2004 WL 228667, at *4 (E.D. Pa. Feb. 3, 2004) (citing Sheridan for the same proposition). Thus, the Court will dismiss the individual liability claim under Title VII at count one as to Klinger.

As to the PHRA claim, Klinger can be held liable because, unlike Title VII, the PHRA prohibits "any person . . . or employee, [from] aid[ding], abet[ting], incit[ing], compel[ling] or coerc[ing] the doing of any act declared by this section to be an unlawful discriminatory practice." 43 P.S. § 955(e) (emphasis added); compare id. with 42 U.S.C. § 2000e-2(a)-(c) (setting forth unlawful employment practices for employers, employment agencies, and labor organizations and making no reference to employees). However, courts within this Circuit, as well as within the Commonwealth, have distinguished between supervisors and non-supervisory employees for the purpose of imposing liability under Section 955(e) of the PHRA. Specifically, liability is imposed only on the former. See, e.g., Dici v. Pennsylvania, 91 F.3d 542, 553 (3d Cir. 1996) (affirming grant of summary judgment as to plaintiff's colleague because plaintiff's colleague, i.e. not her supervisor, was not a proper defendant under PHRA); Clinkscales v. Children's Hosp. of Phila., No. 06-3919, 2007 WL 3355604, at *4-5, 8 (E.D. Pa. Nov. 9, 2007) (retaining Section 955(e) claims against human resources officials, i.e. employees with some supervisory responsibilities, who were alleged to have aided and abetted the racial discrimination of a supervisor by failing to stop him); and Kaniuka v. Good Shepherd Home, et al., No. 05-2917, 2006 WL 2380387, at *10 (E.D. Pa. Aug. 15, 2006) ("Direct incidents of employment discrimination by non-supervisory employees are not covered by PHRA section 955(e). Supervisory employees, however, may be held liable under section 955(e) because they share the discriminatory purpose and intent of the employer necessary to sustain a claim of aiding and abetting.") (internal citations omitted).

Here, Faust alleges that Klinger acted in a conspiracy with Matos and Storm, (Compl. ¶ 4), and that the three men took "advantage of their supervisory positions" when they ordered Faust into an office, confronted her, and placed duct tape over her mouth (Id. ¶ 11). That incident, according to Faust, was the culmination of the sexual discrimination and abuse that she suffered while employed by RCN. (Id.) These facts are sufficient to plead a violation of Section 955(e) of the PHRA as to Klinger because he is characterized as a supervisory employee who aided and abetted conduct that could ...

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