United States District Court, M.D. Pennsylvania
KANE, DISTRICT JUDGE
the Court in the above-captioned case are the following
motions requiring resolution: a Motion to Dismiss for Failure
to State a Claim (Doc. No. 10), a Motion for Protective Order
(Doc. No. 13), a Motion for Leave to File Sur Reply Brief to
Motion for Protective Order (Doc. No. 20), and a Motion for
Leave to File Sur Reply Brief in Response to Defendants'
Reply Brief in Consideration of Their Motion to Dismiss (Doc.
No. 28). The motions are briefed and ripe for disposition.
For the reasons that follow, the Motion to Dismiss will be
granted in part and denied in part, the Motion for Protective
Order will be denied, and Plaintiff's Motions for Leave
to File Sur Reply Brief will be denied.
March 31, 2014, Plaintiff Roger Westgate began working for
Defendant Keystone Blind Association (“KBA”), a
non-profit organization that operates welcome centers and
rest areas in various locations on the interstate highway
system in the Commonwealth of Pennsylvania. (Doc. No. 8
¶¶ 5-7, 10.) Defendant provides cleaning and
maintenance services at the welcome centers and rest areas.
(Id. ¶ 8.) Plaintiff was employed as a
supervisor for a welcome center and rest area at the
Pennsylvania/New Jersey border known as Site F, and a rest
area on Interstate 80 in Monroe County, known as Site 41.
(Id. ¶ 9.)
March 10, 2015, Plaintiff learned from another employee of
Defendant, Bertha Canfield, that a male employee of Defendant
had taken photographs of a man in his underwear in the
men's bathroom at the welcome center (Site F).
(Id. ¶¶ 64, 67.) Plaintiff alleges that
Ms. Canfield was asked by the male employee “if he
could show her something, ” and then he showed her a
photo from his cell phone of a man standing in the men's
bathroom of a facility managed by Defendant, in his underwear
with his pants pulled down to his ankles. (Id.
¶ 67.) Plaintiff asserts that Ms. Canfield was upset and
offended by the sexual nature of the male employee's
actions, and reported the incident to Plaintiff.
(Id. ¶¶ 68-69.)
asked her to document the incident in the form of a letter
that he would forward to Defendant's management.
(Id. ¶ 70.) Ms. Canfield did so, and Plaintiff
forwarded the letter to Melissa Means, Vice President of
Human Resources for Defendant. (Id. ¶¶
71-72.) Plaintiff alleges that by his actions, he opposed the
unlawful practice of sexual harassment in the workplace of
Defendant. (Id. ¶ 73.) Plaintiff alleges that
pursuant to the policies and procedures of Defendant, he
investigated Ms. Canfield's complaint by asking other
employees of Defendant about the conduct of the male
employee. (Id. ¶ 75.) Plaintiff asserts that
after Defendant received Ms. Canfield's letter
transmitted by him, Defendant discharged Plaintiff on March
12, 2015, citing as the reason for discharge that he had lied
about speaking to employees in the course of his
investigation. (Id. ¶¶ 76-77.) Plaintiff
maintains that he did not lie about speaking to employees in
the course of his investigation. (Id. ¶ 78.)
Plaintiff further alleges that Defendant did not discipline
the male employee who had taken the photograph. (Id.
¶ 79.) Plaintiff alleges that Defendant terminated him
in retaliation for his report of wrongdoing. (Id.
September 2, 2015, Plaintiff filed a charge of illegal
retaliation by Defendant pursuant to Title VII of the Civil
Rights Act of 1964 with the Equal Employment Opportunity
Commission (“EEOC”). (Id. ¶60.)
That charge was dual-filed with the Pennsylvania Human
Relations Commission (“PHRC”), as a claim under
the Pennsylvania Human Relations Act (“PHRA”).
(Id.) Plaintiff received a notice of right to sue
from the EEOC on May 31, 2016. (Id. ¶ 61.)
action was initiated in the Monroe County Court of Common
Pleas on August 2, 2015, by way of filing a Writ of Summons.
(Doc. No. 1.) On May 26, 2016, Plaintiff filed his initial
complaint against Defendant, alleging a single cause of
action under the Pennsylvania Whistleblower Law
(“PWL”), 43 P.S.§ 1421 et seq.
(Id.) Subsequently, Plaintiff filed a First Amended
Complaint alleging an additional cause of action under Title
VII of the Civil Rights Act of 1964, which prompted
Defendant's removal of the action to this Court on
September 8, 2016. (Id.)
September 14, 2016, Defendant filed a Motion to Dismiss for
Failure to State a Claim (Doc. No. 5), and supporting brief
(Doc. No. 6). On September 30, 2016, Plaintiff filed another
“First Amended Complaint, ” (“FAC”),
asserting claims in three counts: Count 1 asserts a claim
under the PWL, Count 2 asserts a retaliation claim under
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e-3(a), and Count 3 asserts a retaliation claim
pursuant to the PHRA, 43 P.S. §955(a).
again filed a Motion to Dismiss For Failure to State a Claim
(Doc. No. 10), seeking dismissal of all three counts of
Plaintiff's subsequently filed First Amended Complaint.
As Defendant's Motion to Dismiss was being briefed,
Defendant filed a Motion for Protective Order, seeking the
protection of the Court to prevent certain discovery sought
by Plaintiff related to his PWL claim. (Doc. No. 13.)
Plaintiff filed his Motion for Leave to File a Sur-Reply
Brief in connection with Defendant's Motion for
Protective Order (Doc. No. 20), which Defendant did not
Court held a case management conference on December 1, 2016,
at which time the parties expressed their willingness to
discuss settlement prior to discovery. (Doc. No. 24.)
Accordingly, the Court referred the matter to Magistrate
Judge Martin C. Carlson for settlement discussions. (Doc. No.
25.) In the meantime, on December 15, 2016, Plaintiff filed
another Motion for Leave to File Sur-Reply Brief in Response
to Defendant's Reply Brief to their Motion to Dismiss.
(Doc. No. 28.) Defendant opposed the Motion, and filed a
brief in opposition on December 19, 2016. (Doc. No. 29.)
During a status call with the Court on February 10, 2017, the
parties reported that settlement negotiations were
is based on Plaintiff's claim under Title VII, 42 U.S.C.
§ 2000e-3(a). This Court exercises supplemental
jurisdiction over Plaintiff's PHRA and PWL claims
pursuant to 28 U.S.C. § 1367.
motion filed pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the complaint's factual
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A complaint must contain “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) (internal quotation marks omitted)
(interpreting Fed.R.Civ.P. 8(a)). Generally, a court
considering a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) must ...