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Myers v. Garfield & Johnson Enterprises

January 14, 2010

REBECCA MYERS, PLAINTIFF,
v.
GARFIELD & JOHNSON ENTERPRISES, INC., ET AL., DEFENDANTS



The opinion of the court was delivered by: Yohn, J.

Memorandum

Plaintiff, Rebecca Myers, brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. § 951 et seq., and Pennsylvania common law, against Jackson Hewitt, Inc. ("Jackson Hewitt"); Garfield & Johnson ("G&J"), a licensed franchisee of Jackson Hewitt which does business as "Jackson Hewitt Tax Service"; Frank Johnson, a partner of G&J; and Michael Nolan, a managerial-level employee of G&J. Plaintiff alleges that Johnson and Nolan repeatedly sexually harassed, assaulted, and threatened her during her employment as a tax preparer for G&J and that this behavior forced her to resign from G&J.

Before me is Jackson Hewitt's motion to dismiss plaintiff's amended complaint for failure to state a claim against it. Jackson Hewitt argues that it was not plaintiff's employer under any of the theories alleged by plaintiff and that it is therefore not a proper party to plaintiff's Title VII and PHRA claims. Jackson Hewitt also argues that plaintiff has failed to identify any common-law legal duty on the part of Jackson Hewitt, the breach of which could give rise to a viable negligence claim. I will deny the motion to dismiss as to the Title VII and PHRA claims and will grant the motion to dismiss as to plaintiff's negligence claim.

I. Factual and Procedural History

Presuming the truth of all factual allegations in the complaint, as required for the purposes of this motion, the court gathers the following facts.

A. Plaintiff's Employment with G&J

In December 2007, plaintiff applied over the internet for a position as a tax preparer. (Am. Compl. ¶¶ 15-16.) At the time, plaintiff believed that she was applying for a position at Jackson Hewitt. (Id. ¶ 84.) Defendant Nolan, an employee of G&J, called plaintiff about the position, informing her that the position was with "Jackson Hewitt Tax Service." (Id. ¶¶ 15, 85.) Plaintiff began working for G&J on January 10, 2008. (Id. ¶ 20.) Nolan was her immediate supervisor. (Id. ¶¶ 13, 21.)

Before beginning employment, plaintiff was required to take a tax preparation class, all instructional materials for which were prepared by Jackson Hewitt and available online through Jackson Hewitt's intranet web site, an internal site that is accessible to Jackson Hewitt's franchises. (Id. ¶¶ 16-17.) Plaintiff was also required to complete several Jackson Hewitt-prepared training "modules" and to take a "Tax Preparer Readiness Test" on the intranet site before she began employment. (Id. ¶¶ 18-20.) Such training and testing was required of all G&J employees. (Id. ¶ 75.) All training materials were stamped with the Jackson Hewitt name and logo. (Id. ¶ 86.)

Plaintiff also received a written code of conduct ("Jackson Hewitt Code of Conduct") that prohibited harassment and discrimination in the workplace. (Id. ¶ 78; Pl.'s Opp. to Def.'s Mot. to Dismiss ("Pl.'s Opp.") Ex. I,*fn1 at 4.) The Jackson Hewitt Code of Conduct makes no reference to G&J and is riddled with references to the reader as an "employee" of Jackson Hewitt. (See Pl.'s Opp. Ex. I.) The Code also states that the terms "Jackson Hewitt" and "the Company" are "used interchangeably to refer to Jackson Hewitt Tax Service Inc. or to Jackson Hewitt Tax Service Inc. and its subsidiaries, as appropriate to the context." (See id. at 2.) To the extent that any "subsidiaries or affiliates" publish their own codes of conduct that may be inconsistent with the Jackson Hewitt Code of Conduct, the Jackson Hewitt Code of Conduct is to "take precedence." (Id.) The Code also encourages the reader to report any concerns to a supervisor, to "the Human Resources Department," or directly to "Jackson Hewitt's Legal Department, Jackson Hewitt's Chief Compliance Officer or the 'Integrity Hotline'," a service established by Jackson Hewitt. (See id. at 3.)

After she began employment, plaintiff continued to use Jackson Hewitt's intranet web site and to interact with Jackson Hewitt employees. In addition to its use for training and testing purposes, the intranet site enabled franchise employees to apply for positions within the Jackson Hewitt network, obtain information about Jackson Hewitt policies, and communicate with Jackson Hewitt representatives. (Am. Compl. ¶ 17.) G&J employees were required to submit all client tax returns to Jackson Hewitt for review and filing with the IRS. (Id. ¶¶ 74-75.) Tax returns were never filed until approved by Jackson Hewitt personnel. (Id. ¶ 90.) As required by the franchise agreement, G&J managed its payroll system over Jackson Hewitt's intranet connection, which enabled Jackson Hewitt to access G&J's payroll information remotely. (Id. ¶ 76; see also Def.'s Mot. to Dismiss ("Def.'s Mot.") Ex. B, at ¶¶ 16.1-16.2 (Standard Franchise Agreement, granting Jackson Hewitt the "right, but not the obligation," to inspect franchisees' office locations and granting Jackson Hewitt permission to inspect the contents of computers at those locations).) Franchise employees, including plaintiff, also called Jackson Hewitt's offices directly in order to resolve problems involving tax returns or the computer system. (Am. Compl. ¶ 90.)

According to plaintiff, she was "not aware of the existence of the entity Garfield & Johnson Enterprises, Inc. until she received her first paycheck." (Id. ¶ 88.) When she asked Nolan what G&J was, Nolan told her it was a Jackson Hewitt franchise. (Id.) Plaintiff was told by her supervisors at G&J to answer the telephone as "Jackson Hewitt." (Id. ¶ 87.)

Beginning shortly after she began working for G&J, Nolan made repeated unwelcome sexual remarks to plaintiff. (Id. ¶ 24.) Plaintiff complained about Nolan's behavior to Johnson, who then also began to harass plaintiff. (Id. ¶¶ 26-27.) Howard Garfield, another partner at G&J, was aware of Johnson's harassment of plaintiff but failed to take action to prevent it. (Id. ¶ 29.) Another employee of G&J was also aware of some of the harassment. (Id. ¶ 32.) Sometime in March, Nolan wrote in a performance evaluation of Myers that she "should experience what Nicole Brown Simpson did." Johnson then "circulated the evaluation to several other Garfield & Johnson and/or Jackson Hewitt managers and supervisors." (Id. ¶ 35.) Plaintiff learned about this evaluation on March 26, 2008. (Id.) Plaintiff complained to Johnson about the evaluation. (Id. ¶ 38.) Johnson responded that he "wrote Nolan up" for the remark in the evaluation, but Johnson then solicited oral sex from plaintiff. (Id. ¶¶ 39-40.)

On March 27, 2008, plaintiff told another supervisor, Melissa Orth, that she was afraid of Nolan. Orth encouraged plaintiff to report Nolan's threat to the police, which plaintiff did that same day. (Id. ¶¶ 42, 44.) The police called Nolan and Johnson to the station and Nolan stated that the threatening statement in his evaluation was meant "as a joke." (Id. ¶¶ 45-46.) Johnson supported Nolan's statement. (Id. ¶ 46.) The police took no action and plaintiff resigned from her employment that day. (Id. ¶¶ 47-48.) On August 25, 2008, plaintiff filed a timely charge of discrimination with the Pennsylvania Human Relations Commission against both G&J and Jackson Hewitt (which are named in the charge, respectively, as "Jackson Hewitt Tax Service" and "Jackson Hewitt Tax Services, Inc."). Plaintiff received a right to sue letter on March 26, 2009.

B. Jackson Hewitt's Relationship to G&J and to Plaintiff

Jackson Hewitt's Standard Franchise Agreement*fn2 states that "[n]either [the franchisee], nor [its] manager or... employees shall be considered or represented as our employees or agents." (Def's Mot. Ex. B, ¶ 13.6.) Franchisees and franchise employees are not authorized to enter into any contract or agreement with a third party on Jackson Hewitt's behalf. (Id. ¶ 13.7.) At each franchise location and on all of the franchisee's business cards, contracts, and other documents, the franchisee is required to list the name of the legal entity that owns the franchise and state that the franchise is "independently owned and operated." (Id. ¶ 13.9.) Franchisees are not authorized to enter into any contract under any name similar to "Jackson Hewitt." (Id.)

However, as franchisor, Jackson Hewitt exercises significant control over G&J's daily operations. Jackson Hewitt publishes detailed policies and procedures for its franchisees, which it disseminates to the franchisees over the intranet system. (Am. Compl. ¶¶ 74, 78.) Jackson Hewitt also publishes and periodically updates a compliance manual setting forth "mandatory standards, specifications and requirements of the franchised system," the terms of which were considered provisions of the franchise agreement itself. (Def.'s Mot. Ex. B, ¶ 12.1; Am. Compl. ¶ 77.) This manual, inter alia, specifies the hours at which franchise locations are to be open and requires franchisees to compensate customers for any mistake that the franchisees make, as determined by Jackson Hewitt. (Am. Compl. ¶ 77; Def.'s Mot. Ex. B, ¶¶ 13.5, 13.14.2.) It also prescribes various office and training procedures to ensure quality and prevent tax fraud. (Pl.'s Opp. Ex. B, Parts III-V.) For example, the manual sets mandatory retention spans for all office paperwork, establishes workplace procedures to protect confidentiality, and requires compliance training for all tax preparers at the franchise. (Id. at III-4 to -5.)

The compliance manual ultimately leaves to the franchisee many decisions with respect to hiring employees. (Id. at IV-8.) The Standard Franchise Agreement specifies that the franchisee retains the "sole right to select, hire and discharge [its] employees" and is responsible for "all decisions" regarding employment. (Def.'s Mot. Ex. B, ¶ 13.6.) However, Jackson Hewitt requires that G&J's management and tax preparation employees complete training programs designed by Jackson Hewitt and monitors all such training. (Am. Compl. ¶ 77; Def.'s Mot. Ex. B, ¶ 11.2; Pl.'s Opp. Ex. B, Part V.) The manual also refers to certain circumstances in which the franchisee is immediately required to dismiss an employee. (Pl.'s Opp. Ex. B, at IV-4(2), (3).) The franchise agreement is terminable if any employee or manager fails to complete the required Jackson Hewitt training, if the franchisee commits "any act within or without the Franchised Business that would tend, in [Jackson Hewitt's] opinion, to reflect poorly on the goodwill of [Jackson Hewitt's] name" or marks, or violates any law or regulation pertaining to the franchised business. (Am. Compl. ¶ 77; Def's Mot. Ex. B, ¶ 20.2(u), (v).)

Both Jackson Hewitt and G&J are covered by Title VII as both employ more than fifteen individuals. (Am. Compl. ¶ 14.)

The parties have also attached to their briefs various documents the contents of which were not discussed in the Amended Complaint. These documents include portions of plaintiff's employment application, IRS and Department of Homeland Security forms that plaintiff completed before beginning employment with G&J, the "Garfield & Johnson Team Member Code of Conduct," and the "Jackson Hewitt Tax Preparation Code of Conduct."*fn3 (Def.'s Mot. Ex. A; Pl.'s Opp. Ex. C.) "In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004). If, on a motion pursuant to Rule 12(b)(6), "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment... and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R. Civ. P. 12(b). "Documents that the defendant attaches to the motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the claim; as such, they may be considered by the court" without converting a 12(b)(6) motion into a motion for summary judgment, provided that neither party disputes the document's authenticity. Pryor v. NCAA, 288 F.3d 548, 560 (3d Cir. 2002) (quoting 27A Fed. Proc., L.Ed. § 62:466 (West 2009)). The court may also consider "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading." Id. None of the supplemental documents fall into any of the above-described exceptions to the general prohibition against considering documents outside the complaint in the context of a motion to dismiss for failure to state a claim. Because the parties have not had the opportunity to conduct substantial discovery, I will decline to consider the contents of these documents in order to avoid converting the motion into one for summary judgment.

II. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the "sufficiency of the allegations contained in the complaint." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When evaluating a motion to dismiss, the court must accept as true all well-pleaded allegations of fact in the plaintiff's complaint and must view any reasonable inferences that may be drawn therefrom in the light most favorable to the plaintiff. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009); Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). The complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This statement must "'give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,... a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of ...


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