United States District Court, E.D. Pennsylvania
E.K. PRATTER United States District Judge
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. 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. Because Ms. Court has stated a plausible
claim for negligence, the Court will deny the Gym
Defendants' Motion to Dismiss.
Allegations in the Complaint
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. 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.
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.
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.
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.
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 &
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. 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.
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).
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).
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).
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”) 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.