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Phyllis Sell v. Bc International Group

May 16, 2013

PHYLLIS SELL,
PLAINTIFF,
v.
BC INTERNATIONAL GROUP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM ORDER RE: DEFENDANTS' MOTIONS TO DISMISS (DOC. NO. 9 AND 12)

I.Introduction

This case is an employment discrimination case in which Phyllis Sell ("Plaintiff") alleges causes of action for employment discrimination, hostile work environment and harassment based upon gender and age, and retaliation for engaging in protected acts against Defendants BC International Group, Inc. ("BC International"), Saks Incorporated ("Saks Fifth Avenue"), Karen Peter ("Ms. Peter") and John Raptis ("Mr. Raptis"). Presently before the Court are two Motions to Dismiss: one filed by Saks Fifth Avenue (Doc. No. 9) and one filed by BC International and Mr. Raptis (Doc. No. 12). As discussed at the Court's May 13, 2013, Initial Case Management Conference, as of this date, Ms. Peter has not be served a copy of Plaintiff's Complaint. The Court ordered Plaintiff to promptly serve Ms. Peter.

After careful consideration of Plaintiff's Complaint (Doc. No. 1), Defendants' Motions to Dismiss (Doc. Nos. 9 and 12), briefs in support thereto (Doc. Nos. 10 and 13), Plaintiff's Responses in Opposition (Doc. Nos. 17 and 18), and Defendants BC International and Raptis' Reply in Opposition (Doc. No. 27), the Court will deny Defendant Saks Fifth Avenue's Motion to Dismiss (Doc. No. 9) and grant in part and deny in part Defendants BC International and Mr. Raptis' Motion to Dismiss, for the following reasons.

II.Statement of Facts

Taken as true solely for the purposes of this Memorandum Order, the facts, taken from Plaintiff's Complaint, are as follows:

Plaintiff is a 62 year old female. Doc. No. 1, ¶ 4. She was employed by BC International, as the fur salon manager, at Saks Fifth Avenue, formerly located in downtown Pittsburgh, from November 22, 2009, until October 25, 2011. Id. at ¶¶ 4, 6. Ms. Peter was a General Store Manager at the downtown Pittsburgh Saks Fifth Avenue. Id. at ¶ 11. Mr. Raptis was Plaintiff's immediate supervisor at Defendant BC International. Id. at ¶ 12.

Prior to working in Saks Fifth Avenue's fur salon, Plaintiff worked in a fur salon in Macy's at Ross Park Mall. Id. at ¶ 13. Plaintiff transferred to Saks Fifth Avenue after Mr. Raptis asked her to transfer to a downtown location. Id. Mr. Raptis told Plaintiff that "she could come back if she did not like working at Saks" Fifth Avenue. Id. While working at Saks Fifth Avenue, Plaintiff experienced the following from Ms. Peter: (1) unwanted and unsolicited sexual advances; (2) comments on her physical form (including breast size); (3) invitations to Ms. Peter's home; and (4) unwanted touching including hugs and embraces. Id. at ¶¶ 14-17. Ms. Peter's advances and harassment continued and worsened between March and November 2010. Id. at ¶ 18. When Plaintiff rebuffed Ms. Peter's advances, Ms. Peter refused to work with Plaintiff or assist her with her job which made Plaintiff appear incapable. Id. at ¶ 21. Plaintiff told Ms. Peter to stop her behavior but did not report it to others because she was intimidated and feared further retaliation. Id. at ¶ 22.

Plaintiff applied for a transfer to another store at least seven (7) times through her immediate supervisor, Mr. Raptis. Id. at ¶ 22. Despite promising Plaintiff that she could return to another store if she did not like working at Saks Fifth Avenue, Mr. Raptis denied all of Plaintiff's requests. Id. at ¶ 22.

Plaintiff put in a request to have off from work on October 25, 2011, off from work as a personal day. Id. at ¶ 24. Plaintiff was not aware that her request was not approved. Id. Plaintiff's previous requests for personal vacation days had never been refused. Id. Plaintiff's Assistant Manager for BC International, Sierra Nikolai, phoned Plaintiff when she did not report to work and informed her that she was terminated. Id. Ms. Peter was aware of Plaintiff's termination 45 minutes before Plaintiff was terminated. Id. at ¶ 25. Plaintiff was terminated even though other employees who had done more egregious things had not been terminated (e.g., a 41 year old woman was transferred to another store when it was discovered that she was stealing merchandise from Saks Fifth Avenue). Id. at ¶ 26. The 41 year old woman had been caught stealing had a sexual relationship with Mr. Raptis. Id.

Plaintiff has alleges the following six causes of action: (1) Count I: gender discrimination under Title VII and age discrimination under the ADEA against Defendant BC International; (2) Count II: retaliation against Defendant BC International; (3) Count III: gender discrimination under Title VII and age discrimination under the ADEA against Defendant Saks Fifth Avenue; (4) Count IV: retaliation against Defendant Saks Fifth Avenue; (5) Count V: employment discrimination under the Pennsylvania Human Rights Act ("PHRA") against Defendants BC International and Saks Fifth Avenue; and (6) Count 6: aiding and abetting employment discrimination under the PHRA against Defendants Peter and Raptis. Doc. No. 1.

III.Standard of Review

In considering a Rule 12(b)(6) motion, Federal Courts require notice pleading, as opposed to the heightened standard of fact pleading. Fed. R. Civ. P. 8(a)(2) requires only "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds on which it rests.'" Bell ...


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