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Ellingsworth v. Hartford Fire Insurance Co.

United States District Court, E.D. Pennsylvania

March 22, 2017



          STENGEL, J.


         This 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.

         Ms. 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 defendant's motion.

         II. BACKGROUND[1]

         Marykate 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.

         Ms. 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.

         Because 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.

         On May 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 Investigators stating:

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.

         Ellingsworth does not know what action was taken by The Hartford and she received no further communication or information regarding her complaints.

         Ferrier 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.

         Due to 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 date.


         Under 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.

         Second, 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)).

         The 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).


         The 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 untimely.

         A. Failure to State A Claim

         The defendant argues plaintiff has failed to state a claim for relief because Title VII does not prohibit discrimination based on sexual orientation.[2] 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.

         1. Gender Stereotyping and “Because of Sex” Discrimination

         The 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 employee's “sex.”

         Over 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)).[3] 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 or jewelry).

         Price 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.

         The 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 gender.

         Since 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 ...

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