United States District Court, M.D. Pennsylvania
Matthew W. Brann United States District Judge
Rorke, hereinafter “Rorke, ” filed a three count
complaint against both her former employer, Aubrey Alexander
Toyota, hereinafter “Aubrey Alexander, ” and
former supervisor, Michael Andretta, hereinafter
“Andretta.” Counts I and II assert claims of
retaliation under Title VII and the Pennsylvania Human
Relations Act. Count III alleges intentional infliction of
emotional distress. Defendants filed a motion to dismiss, and
upon careful review of the pleadings and the briefs both in
support and against the motion, I will grant the motion to
dismiss. However, I will provide Rorke with one final
opportunity to amend her complaint.
MOTION TO DISMISS LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6), a defendant may
file a motion to dismiss for “failure to state a claim
upon which relief can be granted.” Such a motion
“tests the legal sufficiency of a pleading” and
“streamlines litigation by dispensing with needless
discovery and factfinding.” “Rule 12(b)(6)
authorizes a court to dismiss a claim on the basis of a
dispositive issue of law.” This is true of any claim,
“without regard to whether it is based on an outlandish
legal theory or on a close but ultimately unavailing
in 2007, the Supreme Court of the United States initiated
what some scholars have termed the Roberts Court's
“civil procedure revival” by significantly
tightening the standard that district courts must apply to
12(b)(6) motions. In two landmark decisions, Bell
Atlantic Corporation v. Twombly and Ashcroft v. Iqbal,
the Roberts Court “changed . . . the pleading
landscape” by “signal[ing] to lower- court judges
that the stricter approach some had been taking was
appropriate under the Federal Rules.” More
specifically, the Court in these two decisions
“retired” the lenient “no-set-of-facts
test” set forth in Conley v. Gibson and
replaced it with a more exacting “plausibility”
after Twombly and Iqbal, “[t]o
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.'” “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.” “Although
the plausibility standard does not impose a probability
requirement, it does require a pleading to show more than a
sheer possibility that a defendant has acted
unlawfully.” Moreover, “[a]sking for plausible
grounds . . . calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of
plausibility determination is “a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” No matter the context,
however, “[w]here 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
disposing of a motion to dismiss, a court must “accept
as true all factual allegations in the complaint and draw all
inferences from the facts alleged in the light most favorable
to [the plaintiff].” However, “the tenet that
a court must accept as true all of the allegations contained
in the complaint is inapplicable to legal
conclusions.” “After Iqbal, it is clear
that conclusory or ‘bare-bones' allegations will no
longer survive a motion to dismiss.”
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
matter of procedure, the United States Court of Appeals for
the Third Circuit has instructed that:
Under the pleading regime established by Twombly and
Iqbal, a court reviewing the sufficiency of a
complaint must take three steps. First, it must tak[e] note
of the elements [the] plaintiff must plead to state a claim.
Second, it should identify allegations that, because they are
no more than conclusions, are not entitled to the assumption
of truth. Finally, [w]hen there are well-pleaded factual
allegations, [the] court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief.
Court now turns to the specifics of the instant matter.
the facts alleged in the complaint as true, as I must when
considering a motion to dismiss, the narrative that unfolds
is as follows:
a female, was a sales consultant working for Aubery
Alexander. She worked for the dealership from August 6, 2008
through February 9, 2015. She claims constructive discharge
due to a sexually hostile environment.
asserts that her “job went smoothly” before
Andretta was hired as the general manager of the dealership
in May or June of 2012. Rorke asserts that by January 2013,
“Andretta had become an intimidating and degrading
presence with a particular hostility toward women.”
alleges the following as evidence of discrimination:
22 In or around November, 2013 he made Plaintiff deliver a
car to Benton, PA an area of Pennsylvania unfamiliar to her.
23. Plaintiff told Andretta she was uneasy about making the
24. Because Andretta forced Plaintiff to make the delivery,
she had a severe anxiety attack and had to phone David Catlin
and Mike Rorke for help to come pick her up at the location
in Northumberland, Pennsylvania.
25. Plaintiff could not complete the delivery.
26. David Catlin took Plaintiff to her house, and the next
day she had to go to the doctor when medication was dispensed
and severe anxiety diagnosed.
27. The anxiety was a direct consequence of having worked for
Andretta for almost a year.
28. Because of the impact of the attack Plaintiff was afraid
to drive a vehicle for 3 weeks.
29. Prior to Andretta coming on board, Plaintiff never had
any emotional psychological issues.
30. Throughout 2013-2014 both in Plaintiff's office and
in a common sales area, Andretta would use profanity and
intimidate the sales associates by slamming filing cabinets,
throwing items and using profanity and degrading remarks.
31. In morning meetings, Andretta would humiliate sales
associate, David Catlin, while degrading women at the same
32. Often the brunt of Andretta's jokes towards David
Catlin involved David's sexual orientation and comments
involving David's ex-wife and his then girlfriend.
33. For example Andretta would ask David if he showered with
both his ex-wife and his girlfriend at the same time.
34. When Bryan Sage, the business manager, was employed
Andretta would often refer to his wife as a “Crazy
35. The phrase “crazy bitch” was said regularly
around Plaintiff and other employees.
36. Andretta called female employee Shannon Fink a “Pop
Tart” which had a sexual and degrading meaning.
37. Andretta would sometimes page her over the loud speaker
using this nick name.
38. Throughout Plaintiff's employment, Andretta would
occasionally refer to her as “Toots” and then
say, “Oh, I can get in trouble for calling you that
39. Andretta often referred to all of the employees as
“Ass Clowns” and told them to “grow a set
of balls” and tell the customer how it was going to be.
40. Andretta consistently ‘fined' Plaintiff and
other employees for various instances such as not wearing a
name tag in the morning.
41. These “fines” were used as intimidation and
went into a jug for a personal beer fund and lunches.
42. Various sales managers and associates knew this money was
used for beer.
43. Andretta would use expletives like “Wake the fuck
up” and “What the fuck is wrong with you”
in morning meetings to the sales staff as a group.
44. In or around February 2014, he physically confronted
another manager, Dennis Christiana, grabbing him by this
shirt and forcing him through the back door while verbally
abusing him in the process.
In or around late summer of 2014, Andretta took one of
Plaintiff's customers who was properly documented and
gave them to a male associate as a form of power and
46. The male associate never had anything to do with the sale
and his transfer of this customer went directly against the
code of sales conduct.
47. The transfer event put so much stress and anxiety on
Plaintiff that evening she had to leave work at 6:00 p.m.
because anxiety overcame her.
48. Andretta told Plaintiff that if she left,
“Don't come back until I call you.”
49. In effect, Plaintiff was suspended from employment
because she protested his illegal actions and became sick
because of them.
50. He texted Plaintiff two days later and said to come back
at this time.
51. In or around the fall of 2014, Plaintiff was standing
next to Andretta when he was working a deal for another ...