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Elena Myers Court v. Loews Philadelphia Hotel, Inc.

United States District Court, E.D. Pennsylvania

February 10, 2017



          GENE E.K. PRATTER United States District Judge

         Elena Myers Court sued (i) Loews Philadelphia Hotel, Inc.; Twelfth Street Hotel Associates; LPH Partner, Inc.; and Loews Hotel Holding Company (the “Loews Defendants”); and (ii) LLB Gym, LLC; 12FIT LLC; and Frank Baer (the “Gym Defendants”), for negligence (Count 3) and negligent infliction of emotional distress (“NIED”) (Count 4) arising out of an alleged sexual assault perpetrated by a massage therapist at a Loews' in-house spa operated by the Gym Defendants.[1] The Gym Defendants have moved to dismiss the claims against them on the basis that provisions of the Pennsylvania Criminal History Record Information Act absolve them from all liability arising out of their hiring of Jerome McNeill, the massage therapist who allegedly assaulted Ms. Court.[2] Because Ms. Court has stated a plausible claim for negligence, the Court will deny the Gym Defendants' Motion to Dismiss.

         I. Allegations in the Complaint

         Ms. Court, while a guest at the Loews Philadelphia Hotel in September 2014, scheduled a sports massage at the 12Fit Spa & Gym, the Hotel's in-house spa.[3] 12Fit assigned Ms. Court a male masseuse, Jerome McNeill. The massage began like many others-Ms. Court undressed to just her underwear and lay face down on a massage table, covering herself with sheets and a blanket. The massage quickly escalated, however, to a massage unlike any other Ms. Court had ever experienced. When Mr. McNeill began to massage Ms. Court's legs, he pulled the sheets covering Ms. Court up to a point where Ms. Court's private areas were exposed. Mr. McNeill proceeded to massage up Ms. Court's legs until his hands were touching her underwear and rubbing against her genitals. Ms. Court experienced complete shock as Mr. McNeill continued to massage her buttocks in a groping manner, which included repeated touching of her underwear and genitals. Mr. McNeill then instructed Ms. Court to turn onto her back and continued to massage Ms. Court's upper legs in a similar fashion, with his hands repeatedly touching Ms. Court's underwear and genitals. Ms. Court did not consent to the overtly sexual nature of the physical contact Mr. McNeill repeatedly made to her private areas. Ms. Court, at 5' 4”, who was undressed and alone in a room with the 6' 1” Mr. McNeill, was too afraid to speak while Mr. McNeill was groping at her body.

         Immediately after the massage, Ms. Court informed 12Fit's manager that Mr. McNeill had assaulted her. The manager did little to follow up on Ms. Court's allegation, merely leaving a note for his superior that Ms. Court was “uncomfortable” during her massage and “hinted to being personally violated” by Mr. McNeill. Compl. ¶ 64. Ms. Court also spoke with Frank Baer, the president of LLB Gym and 12Fit, informing him that Mr. McNeill touched her “in a way she didn't feel comfortable with.” Compl. ¶ 65. Mr. Baer acted “abrasively and dismissively” towards Ms. Court, Compl. ¶ 66, and did not encourage her to report her allegations to Hotel personnel or the police. Mr. Baer and the 12Fit manager also did not report the allegations to Hotel personnel or the police. Mr. McNeill denied Ms. Court's allegations when approached by Mr. Baer.

         Mr. Baer also received a phone call from Ms. Court's mother the day of the alleged assault. During their phone call, Ms. Court's mother provided details of the incident, including that during the massage Mr. McNeill was “rubbing his hands up and down [Ms. Court's] leg from foot [sic] up to her butt and crack and crotch, ” which caused Ms. Court to feel “personally violated.” Compl. ¶ 69. Even after this phone call, Mr. Baer did not inform Hotel personnel or the police of the reported sexual assault. Hotel management only learned about the incident after receiving a voicemail from Ms. Court's mother concerning the allegations.

         After receiving Ms. Court's mother's message, and before speaking to Ms. Court's mother, the Managing Director of the Hotel approached Mr. Baer to learn more details about the allegations. Mr. Baer provided the Managing Director with Mr. McNeill's professional licenses and insurance information, as well as his notes from his conversations with Ms. Court and her mother. In conversations with Ms. Court and her mother, the Managing Director sought to deflect blame away from the Loews and Gym Defendants and onto Mr. McNeill. The Managing Director also worked to persuade Ms. Court and her mother not to file a police report or otherwise contact law enforcement. The Managing Director ultimately succeeded in persuading Ms. Court not to file charges, informing Mr. Baer that he considered “the matter closed” after comping Ms. Court the cost of a night's stay at the hotel. Compl. ¶ 78. Neither the Loews Defendants nor the Gym Defendants took any action with respect to Mr. McNeill as a result of Ms. Court's allegations.

         The Gym Defendants had employed Mr. McNeill for less than two months at the time of the incident. Mr. McNeill came to the Gym Defendants' attention in mid-July 2014 through another of its massage therapists, who had previously worked with Mr. McNeill at a Hand & Stone Massage and Facial Spa location. Unbeknownst to the Gym Defendants, Hand & Stone had fired Mr. McNeill on July 15, 2014 after a customer complained that Mr. McNeill had grabbed his genitals during a massage. This occurred two days before Mr. McNeill applied for a job with the Gym Defendants. The Gym Defendants were unaware of Mr. McNeill's past employment at Hand & Stone because Mr. McNeill did not list Hand & Stone as a past employer on the employment history portion of his application. In fact, the job application's employment history section was completely blank. A short resume Mr. McNeill provided contained employment information only through July 2013, a year before Mr. McNeill's employment by the Gym Defendants. The job application also required Mr. McNeill to address whether he had ever been convicted of a crime. Mr. McNeill answered affirmatively, informing the Gym Defendants that he had been convicted for “Fleeing and [sic] officer on a motorcycle.” Compl. ¶ 42. As part of his job application, Mr. McNeill authorized the Gym Defendants to conduct checks of his criminal and employment histories. After the Gym Defendants hired Mr. McNeill, he informed them of his past employment at Hand & Stone, but did not mention why he was no longer employed by Hand & Stone.

         The Gym Defendants never conducted a criminal history check and failed to verify Mr. McNeill's employment history. Nor did the Gym Defendants contact Hand & Stone after Mr. McNeill informed them of his past employment to verify his employment or inquire into why Mr. McNeill no longer worked there. Had the Gym Defendants conducted a criminal history check, they would have learned that Mr. McNeill (i) had been arrested three times for traffic offenses involving fleeing or evading the police and (ii) was arrested and charged in 2007 with the alleged rape of a minor.[4] Had the Gym Defendants taken steps to verify Mr. McNeill's past employment history, they would have discovered that Mr. McNeill had recently been fired from a position as a massage therapist for touching a male customer's genitals.

         II. Legal Standard

         Federal Rule of Civil Procedure 12(b)(6) authorizes testing the legal sufficiency of a complaint. Although Federal Rule of Civil Procedure 8 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 upon which it rests, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal quotation marks omitted) (alteration in original), the plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citation omitted).

         To survive a motion to dismiss, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Specifically, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). The question is not whether the claimant will ultimately prevail, but whether the complaint is “sufficient to cross the federal court's threshold.” Skinner v. Switzer, 562 U.S. 521, 529-30 (2011).

         To decide a Rule 12(b)(6) motion to dismiss, the Court may look only to the facts alleged in the complaint and its attachments. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The Court may also consider documents that are “integral to or explicitly relied upon in the complaint . . . without converting the motion [to dismiss] into one for summary judgment.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citation omitted). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). Likewise, the Court must accept as true all reasonable inferences that may be drawn from the allegations, and view those facts and inferences in the light most favorable to the non-moving party. See Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989).

         III. Discussion

         Ms. Court's claims against the Gym Defendants are Pennsylvania state law claims sounding in negligence. The Gym Defendants argue that they had no duty to conduct a more thorough pre-employment investigation into Mr. McNeill because the Pennsylvania Criminal History Record Information Act (“CHRIA”)[5] would have legally prohibited them from considering any of the information they could have discovered about Mr. McNeill's past. Essentially, the Gym Defendants argue that Ms. Court's negligence claims can succeed only if the Court determines that the Gym Defendants should have violated the CHRIA during Mr. McNeill's application process. This argument, however, relies on a counterfactual analysis of what might have happened based on hypothetical facts that are not in the Complaint. At this stage, on a motion to dismiss, the Court's role is to analyze the sufficiency of the allegations in the complaint. The question, then, is whether Ms. Court has stated plausible claims for negligence and NIED. She has.

         A. ...

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