United States District Court, E.D. Pennsylvania
case involves sexual orientation and gender stereotyping
Title VII claims. Marykate Ellingsworth, the plaintiff,
claims she was discriminated against and harassed because of
the way she dressed, her appearance, style, and perceived (by
co-workers) sexual orientation.
Ellingsworth filed a complaint against her former employer,
alleging sexual harassment, gender discrimination, and
retaliation in violation of Title VII of the Civil Rights Act
(Title VII) and the Pennsylvania Human Relations Act (PHRA).
The defendant filed a motion to dismiss. I will deny the
Ellingsworth lives with her husband in Allentown,
Pennsylvania. Five years ago, on March 26, 2012, Ms.
Ellingsworth was hired by The Hartford (an insurance company)
as a customer service representative. After completing her
initial training, Ms. Ellingsworth was placed on a work team
supervised by Angela Ferrier.
Ferrier allegedly harassed Ms. Ellingsworth in various ways
over the span of approximately one year. Ferrier would tell
Ellingsworth that she “dresses like a dyke.”
Ferrier would also make fun of Ellingsworth's clothing,
call her “stupid, ” and tell her that she
“sucks.” In addition to ridiculing Ms.
Ellingsworth directly, Ms. Ferrier would also tell her
coworkers that Ellingsworth “dresses like a dyke”
and has a “lesbian tattoo.” At times, Ferrier
would force Ellingsworth to show her tattoo to coworkers and
then ask those coworkers whether they thought it was a
“lesbian tattoo.” Ferrier went so far as to tell
Ellingsworth's coworkers that Ellingsworth was a lesbian.
These remarks were made in private to Ms. Ellingsworth and
also, at other times, in front of coworkers.
of this persistent harassment, Ellingsworth's coworkers
began to adopt the belief that Ellingsworth was gay, even
though she is not. Eventually, it became “generally
accepted” in the workplace that Ellingsworth was gay.
Ellingsworth felt compelled to explain to her coworkers that
she was not a lesbian. This situation began to exacerbate
Ellingsworth's pre-existing depression and anxiety.
8, 2013, Ms. Ellingsworth complained to one of her
supervisors, Laurie Kumnick, about Ferrier's harassment.
Ellingsworth made two statements about the harassment on two
separate days. Several weeks later, Ellingsworth received a
letter from one of The Hartford's Employee Relations
I write to follow-up on the concerns you raised during our
discussion on May 13th and 14th. I
would like to thank you for bringing your concerns to The
Hartford's attention, as it takes such concerns very
seriously. I conducted a thorough investigation based on the
information you shared. The Hartford has completed its
investigation and has taken appropriate action. Accordingly,
The Hartford considers this investigation closed.
does not know what action was taken by The Hartford and she
received no further communication or information regarding
continued to work as Ellingsworth's supervisor. In July
2013, Ferrier went on maternity leave. She returned to The
Hartford and began working again in November 2013.
Ellingsworth claims that her anxiety and depression were
exacerbated by Ferrier's return.
her anxiety and depression, Ellingsworth took a leave of
absence beginning January 6, 2014. On March 24, 2014, The
Hartford wrote her a letter stating that she could either
return to work or be terminated. Believing that nothing would
be done to resolve the harassment, Ms. Ellingsworth was
unable to return to work. She claims she was constructively
discharged. Two months later, on May 23, 2014, Ms.
Ellingsworth filed an administrative complaint with the
Pennsylvania Human Relations Committee (“PHRC”).
This complaint was cross-filed with the EEOC on or after that
Rule 12(b)(6), a defendant bears the burden of demonstrating
that the plaintiff has not stated a claim upon which relief
can be granted. Fed.R.Civ.P. 12(b)(6); see also Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
the United States Supreme Court recognized that “a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Id. at 555. Subsequently, in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), the Supreme Court defined a
two-pronged approach to a court's review of a motion to
dismiss. “First, the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 678. Thus,
while “Rule 8 marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era
. . . it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”
Id. at 678-79.
the Supreme Court emphasized that “only a complaint
that states a plausible claim for relief survives a motion to
dismiss.” Id. at 679. “Determining
whether a complaint states a plausible claim for relief will,
as the Court of Appeals observed, be a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. A complaint
does not show an entitlement to relief when the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct. Id.; see also
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-34 (3d
Cir. 2008) (holding that: (1) factual allegations of
complaint must provide notice to defendant; (2) complaint
must allege facts suggestive of the proscribed conduct; and
(3) the complaint's “‘factual allegations
must be enough to raise a right to relief above the
speculative level.'” (quoting Twombly, 550
U.S. at 555)).
basic tenets of the Rule 12(b)(6) standard of review have
remained static. Spence v. Brownsville Area Sch.
Dist., No. Civ.A.08-626, 2008 WL 2779079, at *2 (W.D.
Pa. July 15, 2008). The general rules of pleading still
require only a short and plain statement of the claim showing
that the pleader is entitled to relief and need not contain
detailed factual allegations. Phillips, 515 F.3d at
233. Further, the court must “accept all factual
allegations in the complaint as true and view them in the
light most favorable to the plaintiff.” Buck v.
Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.
2006). Finally, the court must “determine whether,
under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Pinkerton v. Roche
Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).
defendant moves to dismiss plaintiff's complaint on two
grounds. First, defendant moves pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim.
Second, defendant argues the plaintiff's claims are
Failure to State A Claim
defendant argues plaintiff has failed to state a claim for
relief because Title VII does not prohibit discrimination
based on sexual orientation. Because Title VII prohibits
gender stereotyping and discrimination “because of sex,
” defendant's argument lacks merit. Accordingly, I
will deny the motion to dismiss plaintiff's disparate
treatment and hostile work environment claims.
Gender Stereotyping and “Because of Sex”
pertinent section of Title VII provides: “It shall be
unlawful . . . to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(1). At
issue here is what it means for an employer to discriminate
against one of its employees “because of” that
the years, the United States Supreme Court has taken an
increasingly broad view of Title VII's “because of
sex” language. See EEOC v. Scott Med. Health
Ctr., ___ F.Supp.3d ___, 2016 WL 6569233, at *5 (W.D.
Pa. 2016) (collecting cases). Most notable for purposes of
this case, the Supreme Court has held that Title VII's
“because of sex” language prohibits
discrimination based upon employers' subjectively held
gender stereotypes. Prowel v. Wise Bus. Forms, Inc.,
579 F.3d 285, 286-87 (3d Cir. 2009) (citing Price
Waterhouse v. Hopkins, 490 U.S. 228
(1989)). Courts have since recognized a wide
variety of “gender stereotyping” claims.
See, e.g., Prowel, 579 F.3d at 291
(reversing summary judgment on male employee's gender
stereotyping claim because issue of fact existed as to
whether he was harassed for having a high-pitched voice,
walking effeminately, and wearing feminine clothing);
Price Waterhouse, 490 U.S. at 250 (“[A]n
employer who acts on the basis or a belief that a woman
cannot be aggressive, or that she must not be, has acted on
the basis of gender.”); Scott, ___ F.Supp.3d
___, 2016 WL 6569233, at *6 (“There is no more obvious
form of sex stereotyping than making a determination that a
person should conform to heterosexuality.”); Thomas
v. Keystone Real Estate Grp. LP, No. 4:14-CV-543, 2015
WL 1471273 (M.D. Pa. Mar. 31, 2015) (denying motion to
dismiss female employee's gender stereotyping claim
because employer allegedly failed to promote her for not
walking, talking, or dressing femininely, or wearing make-up
Waterhouse v. Hopkins, is the seminal case regarding
Title VII gender stereotyping claims. 490 U.S. 228 (1989).
There, the U.S. Supreme Court held that evidence of an
employer's gender stereotyping could show that a female
employee was refused a promotion “because of” her
“sex.” Price Waterhouse, 490 U.S. at
235, 250-51. More specifically, the Court pointed to evidence
that the female employee was viewed as “macho, ”
not feminine enough, and told to “take a course in
charm school.” Id. at 235. In reversing
summary judgment, the Court noted, “[i]n the specific
context of sex stereotyping, an employer who acts on the
basis of a belief that a woman cannot be aggressive, or that
she must not be, has acted on the basis of gender.”
Id. at 250. The U.S. Court of Appeals for the Third
Circuit has taken Price Waterhouse as holding:
“Title VII prohibits discrimination against women for
failing to conform to a traditionally feminine demeanor and
appearance.” Prowel, 579 F.3d at 290.
defendant relies heavily on Bibby v. Philadelphia Coca
Cola Bottling Co., where the Third Circuit held:
“It is clear . . . that Title VII does not prohibit
discrimination based on sexual orientation.” 260 F.3d
257, 261 (3d Cir. 2001). In that case, John Bibby, a gay man,
was employed by Coca Cola. Bibby, 260 F.3d at 259.
Bibby filed a complaint against Coca Cola, alleging he was
harassed in violation of Title VII because he was gay.
Id. at 264. The Third Circuit affirmed the district
court's entry of summary judgment in favor of the
employer. Id. It did so on the basis that Bibby
offered “nothing that would support” the
conclusion that he was discriminated against because of his
sex. Id. In other words, Bibby presented
insufficient evidence from which a reasonable jury could
conclude that Bibby's harassment was because of his
Bibby, the Third Circuit has distinguished between
Title VII claims based upon gender stereotyping and Title VII
claims based upon sexual orientation. In Prowel v. Wise
Business Forms, Inc., Judge Hardiman applied this
distinction in allowing a self-described “effeminate
man['s]” gender stereotyping claim to proceed
beyond summary judgment. 579 F.3d at 286-87. In doing so,
Judge Hardiman emphasized that “the line between sexual
orientation discrimination and discrimination ‘because
of sex' can be difficult to draw.” Id. at
291. After evaluating the evidence presented at summary
judgment, Judge Hardiman conceded, “it is possible that
the harassment Prowel alleges was because of his sexual
orientation, not his effeminacy.” Id. at 292.
“Nevertheless, ” Judge Hardiman held, “this
does not vitiate the possibility that Prowel was also
harassed for his ...