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Gentile v. DES Properties

February 16, 2010


The opinion of the court was delivered by: Judge Munley


Before the court for disposition is the motion to dismiss Counts I, IV, V and VII of Plaintiff Annmarie Gentile's complaint, filed by Defendants DES Properties, Inc. d/b/a Classic Quality Homes, Inc., David Wengerd and Steven Wengerd (hereinafter collectively "defendants"). The matter has been fully briefed and is ripe for disposition.


Defendants employed plaintiff beginning in June 2007 when they purchased the company for which she worked. (Doc. 6, Amended Complaint at ¶ 11). Defendants bought the company from Raymond Bender. (Id.) Although he had sold the company, Bender continued to regularly come onto the company premises with the defendants' permission. (Id. at ¶ 13). Plaintiff informed the defendants that Bender had previously harassed her and was continuing so to do each time he visited the workplace. (Id. at ¶ 14). Regardless of this notification, the defendant continued to allow Bender and his harassing conduct onto the premises. (Id. at ¶ 15). Defendants stood by as Bender's conduct toward plaintiff and her co-worker Andrea Costenbader (hereinafter "Costenbader") and other women in the office became more aggressive. (Id.)

Plaintiff asserts that she witnessed Bender commit a sexual assault upon Costenbader. (Id. at 16 - 17). Plaintiff complained of the assault to the foreman, Gerry Gaito, who stated that he wanted "nothing to do with it." (Id. at 18). The women also contacted the Pocono Mountain Regional Police and filed criminal charges with regard to the incident with Bender. (Id. at 20). Plaintiff also filed a discrimination complaint with the Equal Employment Opportunity Commission on December 5, 2007. (Id. at ¶ 21). Plaintiff asserts that the defendants ignored complaints about the harassment and retaliated against her for complaining. (Id. at ¶ ¶ 22).

Specifically, Plaintiff states that Defendants fired Costenbader after she and Plaintiff filed criminal charges against Bender despite the fact that Costenbader had received a promotion just days earlier. (Id. at ¶ 22). Plaintiff states that Defendants told her to lie about her reasons for filing the criminal charges. (Id.) Plaintiff also states that following her complaints, Defendants "subjected her to repeated searches of her workstation for evidence to justify the termination of her employment," and that "on multiple occasions threatened her with discharge." (Id. at ¶ 24).

At roughly the same time as the Bender incident discussed above -- "[o]n or about November 2009" -- plaintiff informed defendants that she was pregnant and that her child was due on August 4, 2008. (Id. at ¶ 25). Some months later -- "[i]n or about early Spring 2008" -- plaintiff states that she and defendants reached an agreement whereby defendants would provide plaintiff with three weeks worth of paid maternity leave and that, in addition to the maternity leave, she could use her one week of paid vacation and any unused paid sick and personal days in conjunction with her maternity leave "with the understanding that she would return to work after that time." (Id. at ¶ 27).

Subsequent to this original agreement regarding time away after plaintiff gave birth -- "in or about June 2008" -- David Wengerd "suggested that it would be more advantageous for [plaintiff] to take a temporary 'layoff' beginning on July 1, 2008 and returning to work on October 1, 2008." (Id. at ¶ 27). David Wengerd also told plaintiff "she would be able to collect unemployment compensation benefits during the alleged 'layoff' period and that he would continue her medical, dental, and vision insurance during that time as well." (Id.)

Plaintiff continued to work through the final day of June 2008 -- the day before the temporary "layoff" was to begin -- and during the final week of June 2008, David Wengerd instructed plaintiff to explain parts of her job to Steven Wengerd who he said would "temporarily do her job while she was out." (Id. at ¶ 29).

Plaintiff states that "[o]n or about July 1, 2008" she filed for unemployment compensation benefits. (Id. at ¶ 30). Nonetheless, plaintiff avers that David and Steven Wenger continued "calling her to come in to continue working twenty hours or more for approximately two or three days per week during at least the first three weeks of July 2008." (Id. at ¶ 31).

Plaintiff's paycheck for the last two weeks of June 2008 was "short and... she was still owed an additional week of pay for the time period.." (Id. at ¶ 32). When plaintiff spoke to Steven Wengerd and requested the pay owed, Steven told her it would be difficult to get from David Wenger. (Id. at ¶ 33). When Steven contacted plaintiff to tell her that the pay due would be ready the following Friday -- "two weeks late" -- Steven also informed her that David had cancelled her insurance effective at the end of July, before plaintiff's due date. (Id. at ¶ 34).

It appears that plaintiff was paid for her work through the end of June 2008, but plaintiff states that she was not paid for her work during July 2008 prior to the birth of her child on July 30, 2008. (Id. at ¶¶ 35-36). She also states that she has not been compensated for the three weeks maternity leave agreed to by defendants or her accrued paid vacation, sick, and personal time. (Id. at ¶ 37).

After filing for unemployment benefits, plaintiff was informed by the unemployment compensation authorities that defendants' position was that plaintiff had quit her job voluntarily and would, therefore, be ineligible to receive benefits. (Id. at ¶ 38). Plaintiff states that when she tried to contact him, David Wengerd avoided her calls and although Steven Wengerd assured her that the authorities were mistaken, a copy of the letter from defendants to the authorities which was supposed to correct the error revealed that "Defendants had merely misrepresented the circumstances of her employment termination once again, such that she would be precluded" from receiving unemployment benefits. (Id. at ¶¶ 39-41).

When plaintiff finally reached David Wenger directly, "he told her that he no longer wanted her to come into work or return on October 1, 2008 as agreed and that he had hired two girls to replace her." (Id. at ¶ 43). Plaintiff states that defendants have continued their retaliation subsequent to the permanent termination of her employment by "refusing to correct their false representations to unemployment authorities" and, further, by "falsely communicating to unemployment authorities that she had essentially failed to return to work for them as promised." (Id. at ¶ 44).

Accordingly, plaintiff filed the instant seven-count amended complaint which raises the following causes of action: Count I - sex discrimination and harassment under Title VII of the Civil Rights Act of 1964 ("Title VII"); Count II - retaliation; Count III - defamation; Count IV - tortious interference; Count V - unpaid wages; Count VI - wrongful discharge; and Count VII - fraud/tortious misrepresentation. Defendants responded by filing a motion to ...

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