The opinion of the court was delivered by: Stengel, J.
Tracey S. Artz filed this employment discrimination action against her former employer based on sexual harassment, gender, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.,*fn1 and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S.A. § 951, et seq.*fn2 The defendant has filed a motion to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, I will deny the motion in its entirety.
In May 2005, Miss Artz was hired by the defendant as a Claims Technician. See Am. Compl. ¶ 17. Justin Wanner was another employee of the defendant who worked on the same floor as the plaintiff. Id. ¶ 18. During the course of her employment, Miss Artz saw Mr. Wanner on a regular basis, and occasionally interacted with him. Id. ¶ 24.
In September 2007, Miss Artz was sexually assaulted outside of work by Mr. Wanner. Id. ¶ 18. Criminal charges for sexual assault were filed against him. Id. ¶ 19. Miss Artz informed her employer of the assault and the impact it had on her life, i.e., extreme concern, anxiety, and distress. Id. ¶ 20. The defendant put Mr. Wanner on a two month paid leave of absence as a consequence of the alleged sexual assault. Id. ¶ 21. The defendant promised Miss Artz that she would not have to see Mr. Wanner at work and that she would not have to interact with him during the course of her employment. Id. ¶ 22. Miss Artz returned to work in reliance on the defendant's promise. Id. ¶ 23. In November 2007, two months after the sexual assault, Miss Artz saw Mr. Wanner in the building and immediately complained to the defendant. Id. ¶ 25. The defendant advised Miss Artz that Mr. Wanner was still an employee and that its business decision had changed, but offered her no other explanation. Id. ¶ 26. The defendant gave Miss Artz three choices: (1) she could resign; (2) she could move to a different floor; or (3) she could remain on the same floor as Mr. Wanner. Id. ¶ 28. As a consequence of Mr. Wanner returning to work, Miss Artz was allegedly forced to take a leave of absence. Id. ¶ 29.
A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). Facial attacks contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true. Dismissal under a facial challenge is proper only when the claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction, or is wholly insubstantial and frivolous. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-1409 (3d Cir. 1991).
In contrast, a trial court considering a factual attack, i.e., an attack based on the sufficiency of jurisdictional fact, accords a plaintiff's allegations no presumption of truth. Turicentro, S.A. v. Am. Airlines, Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002). Where subject matter jurisdiction "in fact" is challenged, the trial court's very power to hear the case is at issue, and the court is therefore "free to weigh the evidence and satisfy itself as to the power to hear the case." Mortensen v. First Federal Savings and Loan Assoc., 549 F.2d 884, 891 (3d Cir. 1977). Here, the defendant brings a facial challenge to the court's jurisdiction to hear the merits of the plaintiff's claims. See Document #13 at 5.
Likewise, a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure also asks the court to examine the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations of the complaint must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which she bases her claim. Conley, 355 U.S. at 47. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 564. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).
The amended complaint alleges that the defendant created a sexually hostile environment for the plaintiff when it reneged on its promise, and failed to take adequate remedial action on the plaintiff's complaint of sexual harassment. See Am. Compl. ¶ 31. It further alleges that the defendant's conduct constituted unlawful discrimination against her based on her gender. Id. ¶ 34. Finally, the complaint alleges that by her informing the defendant that she wanted the defendant to take action to ensure Mr. Wanner did not have contact with her at work, she engaged in protected activity under the relevant employment discrimination statutes.Id. ¶ 37. As a result of engaging in that activity, the defendant terminated or "constructively terminated" her employment and subjected her to other adverse employment actions. Id. ¶¶ 38, 39.
A. Sexual Harassment/Hostile Work Environment
The defendant argues that this claim must be dismissed because Miss Artz cannot make out a prima facie claim of sexual harassment. Specifically, it contends that Miss Artz has failed to state a claim upon which relief may be granted because (1) the defendant is not liable as a matter of law for a sexual assault by a co-worker outside of the workplace and after work hours; (2) the defendant is not liable as a matter of law where there is no nexus between the workplace, the plaintiff, and the alleged conduct; (3) the defendant is not liable as a matter of law where the employee who assaulted Miss Artz was acting outside the scope of his employment, outside of the workplace, and ...