United States District Court, M.D. Pennsylvania
Magistrate Judge Carlson
Kane, District Judge
BACKGROUND OF THIS ORDER IS AS FOLLOWS:
June 2010 until May 2015, Plaintiff James McAssey worked as
the Vice President of Business Development for Defendant
Discovery Machine Inc. (“DMI”). (Doc. No. 1
¶¶ 20, 22.) Plaintiff asserts that he experienced a
“serious brain incident” in 2009 and has
occasionally suffered acute headaches as a consequence of
hydrocephalus. (Id. ¶ 21.) Defendant Anna
Griffith, owner and chief executive officer of DMI, allegedly
commented “on occasion that she did not want Plaintiff
to represent DMI.” (Id. ¶¶ 4-5, 21.)
Defendant Anna Griffith also purportedly subjected Plaintiff
to unwelcome and unsolicited acts that included, inter
alia, sexual requests, “lying to Plaintiff about
DMI client contact, ” and “going out to meals to
provide the Plaintiff alcohol.” (Id. ¶
February 24, 2016, Plaintiff filed a complaint in the United
States District Court for the Eastern District of
Pennsylvania against Defendants DMI, Anna Griffith, Todd
Griffith, Howard Lewis, Molly Lusk, and Vanessa Chapla,
alleging violations under Title VII of the Civil Rights Act,
42 U.S.C. § 2000e, et seq. (“Title
VII”), the Americans with Disabilities Act, 42 U.S.C.
§12101, et seq. (“ADA”), and the
Pennsylvania Human Relations Act, 43 P.S. § 951, et
seq. (“PHRA”). (Doc. No. 1.) In his
complaint, Plaintiff alleges, inter alia, that
Defendants subjected him to a hostile work environment and
terminated him for his refusal to be subjected to continued
harassment and because of his disability. (Id.
¶¶ 26, 27, 32, 33.) Plaintiff also asserts that
Defendants Todd Griffith, Howard Lewis, Molly Lusk, and
Vanessa Chapla “aided and abetted Ms. [Anna]
Griffith's harassment against Plaintiff.”
(Id. ¶ 6.)
March 21, 2016, Defendants filed a motion to transfer venue
to the United States District Court for the Middle District
of Pennsylvania pursuant to 28 U.S.C. § 1404(a). (Doc.
No. 10.) Judge Timothy J. Savage granted the motion on April
18, 2016 and the above-captioned case was transferred to the
Middle District of Pennsylvania on April 28, 2016. (Doc. Nos.
18-19, 21.) Pending at the time of transfer was
Defendant's motion to dismiss Plaintiff's complaint
filed pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Doc. No. 13.) In their motion to dismiss, Defendants argue
that the complaint is “devoid of any factual
allegations” involving Todd Griffith, Howard Lewis,
Molly Lusk, and Vanessa Chapla, fails to state a claim for
disability discrimination under the ADA and PHRA, and fails
to state a claim for retaliation under Title VII.
(Id. at 10-14 & n.19.)
January 18, 2017, Magistrate Judge Carlson issued a Report
and Recommendation, recommending that this Court grant in
part and deny in part Defendants' motion to dismiss.
(Doc. No. 40.) Specifically, Magistrate Judge Carlson
recommends that this Court: (1) dismiss without prejudice
Plaintiff's ADA claim; and (2) decline to dismiss
Plaintiff's Title VII claim regarding sexual harassment
and retaliation, but direct Plaintiff “to file a more
definite statement” concerning his Title VII claim.
(Doc. No. 40 at 17-18, 22-23.) Defendants filed objections to
the Report and Recommendation (Doc. Nos. 44, 44-2), and the
parties each filed briefs addressing Defendants'
objections (Doc. Nos. 45, 47).
their objections, Defendants contend that the Report and
Recommendation did not address whether Plaintiff adequately
alleged a PHRA claim against Todd Griffith, Howard Lewis,
Molly Lusk, and Vanessa Chapla. (Doc. Nos. 44 at 2; 44-2 at
2.) Defendants reason that only a “supervisory employee
can be shown to have aided and abetted the employer's
discriminatory actions in violation of the PHRA, ”
(Doc. No. 44-2 at 12-13) (quoting Cohen v. Temple
Physicians, Inc., 11 F.Supp.2d 733, 737 (E.D. Pa.
1998)), and that Plaintiff failed to allege that Todd
Griffith, Howard Lewis, Molly Lusk and Vanessa Chapla were
supervisors (id. at 13). Plaintiff responds that the
complaint adequately alleges that Defendants Anna Griffith,
Todd Griffith, Howard Lewis, Molly Lusk, and Vanessa Chapla
committed “acts of discrimination as Plaintiff's
supervisor or fellow employee” and are liable under 43
Pa. Stat. § 955(e). (Doc. No. 45 at 4, 8.)
Report and Recommendation correctly recognized that
“[t]he analytical framework used to evaluate a
disability discrimination claim under the PHRA is effectively
indistinguishable from that under the ADA.” (Doc. No.
40 at 9) (quoting Wilson v. Iron Tiger Logistics,
Inc., 628 F.App'x 832, 835-36 (3d Cir. 2015)).
Similarly, as a general rule, “[c]laims brought under
the Pennsylvania Human Relations Act … [are]
‘interpreted coextensively with Title VII
claims.'” Faush v. Tuesday Morning, Inc.,
808 F.3d 208, 213 (3d Cir. 2015). However, the Report and
Recommendation did not squarely address whether Plaintiff
adequately alleged an aiding and abetting claim under the
PHRA against Todd Griffith, Howard Lewis, Molly Lusk, and
Vanessa Chapla. (Doc. Nos. 40; 44 at 2.) Accordingly, the
Court now turns to the Defendants' PHRA
(e) [A]ny person, employer, employment agency, labor
organization or employee, to aid, abet, incite, compel or
coerce the doing of any act declared by this section to be an
unlawful discriminatory practice, or to obstruct or prevent
any person from complying with the provisions of this act or
any order issued thereunder, or to attempt, directly or
indirectly, to commit any act declared by this section to be
an unlawful discriminatory practice.
43 Pa. Stat. Ann. § 955(e); see Snyder v.
Pennsylvania, No. 09-1814, 2010 WL 4362440, at *7 (M.D.
Pa. Oct. 27, 2010) (citing Dici v. Com. of Pa., 91
F.3d 542, 551-52 (3d Cir. 1996)). “[D]istrict courts
sitting in the Third Circuit have consistently held that
‘[l]iability under § 955(e) attaches only to
supervisory employees.'” Suero v. Motorworld
Auto. Grp., Inc., No. 16-686, 2017 WL 413005, at *5
(M.D. Pa. Jan. 31, 2017) (collecting cases). This approach to
§ 955(e) liability tracks “the theory that only
supervisors can share the discriminatory purpose and intent
of the employer that is required for aiding and
abetting.” See, e.g., Holocheck v. Luzerne
Cty. Head Start, Inc., 385 F.Supp.2d 491, 497 (M.D. Pa.
2005) (Vanaskie, J.) (citing Bacone v. Philadelphia
Housing Auth., No. 01-419, 2001 WL 748177, *2 (E.D. Pa.
June 27, 2001)).
in his complaint, Plaintiff alleges that Todd Griffith,
Howard Lewis, Vanessa Chapla, and Molly Lusk are
“employees and/or officers of DMI” who
“aided and abetted” Anna Griffith's
harassment and, more generally, aided and abetted “the
harassment and discrimination.” (Doc. No. 1
¶¶ 6, 29, 40) The three exhibits Plaintiff attaches
to his complaint similarly only permit the Court to draw the
following inferences therefrom: (1) Howard Lewis is a
chairman of DMI's board and a paid consultant
(id. at 17, 24); (2) Plaintiff notified Howard Lewis
of Anna Griffith's “vulgare and abuse
treatment” on April 27, 2015 (id. at 17;
see Doc. No. 1-1 at 1); (3) Howard Lewis responded
on April 27, 2015 that “sometimes people have a bad
day” and mentioned approaching “things
differently next time” (Doc. No. 1 at 17, 24); and (4)
the termination letter was provided to Plaintiff by Anna
Griffith, Todd Griffith, and Howard Lewis (Doc. No. 1-1 at 1,
review of the complaint and the exhibits attached thereto,
the Court finds that Plaintiff fails to adequately allege an
aiding and abetting claim under the PHRA against Todd
Griffith, Howard Lewis, Vanessa Chapla and Molly Lusk. First,
Plaintiff fails to allege or otherwise permit this Court to
reasonably infer that Todd Griffith, Howard Lewis, Vanessa
Chapla and Molly Lusk were Plaintiff's supervisors.
Second, although the complaint makes references to the
conduct of “Defendants” and “foregoing
acts, ” Plaintiff fails to plead factual allegations
that support the conclusory assertion that Todd Griffith,
Howard Lewis, Vanessa Chapla, and Molly Lusk aided and
abetted PHRA violations. (Id. ¶¶ 40, 41.)
Therefore, the Court will dismiss without prejudice
Plaintiff's aiding and abetting claims under the PHRA for
failure to state a claim upon which relief can be granted.
upon independent review of the record and applicable law, on
this 20th day of ...