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Hernandez v. EHC Associates, Inc.

United States District Court, E.D. Pennsylvania

June 19, 2018

SASHA HERNANDEZ, Plaintiff,
v.
EHC ASSOCIATES, INC.; JOHN D. HARTMAN; ESMERIDO OLIVA-CHACON; MICHEL A. MARQUEZ-PRUNEDA; DANIEL L. KYLOR; JORGE L. INTRIAGO; ELIONEA CIRILIO, Defendants.

          ORDER DEFENDANT MARQUEZ-PRUNEDA'S MOTION TO DISMISS, ECF NO. 15 - GRANTED

          JOSEPH F. LEESON, JR. UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Sasha Hernandez initiated this action against her former employer, Defendant EHC Associates, Inc. (“EHC”), under Title VII of the Civil Rights Act, and against several individual employees of EHC under the Pennsylvania Human Resources Act (“PHRA”), 43 P.S. §§ 951-963 for discrimination, retaliation, and aiding and abetting, as well as the state law tort of assault and battery. Defendant Michel Marquez-Pruneda has filed a Motion to Dismiss all claims alleged against him. For the reasons set forth below, the Motion is granted because Hernandez has agreed to withdraw the discrimination claim and failed to allege sufficient facts to state the remaining claims. Hernandez is given leave to file an amended complaint.

         II. BACKGROUND

         Hernandez alleges that she was subject to sexual harassment by her coworkers. The Complaint alleges as follows: From June 2015 until March 17, 2017, [1] Hernandez was a female employee of ECH along with Marquez-Pruneda, a male employee. Compl. ¶¶ 29, 68 ECF No. 1. They were both employed as asbestos handlers for ECH. Id. ¶¶ 24, 29.

         On July 18, 2015, when another co-worker stated his desire to sexually assault Hernandez, Marquez-Pruneda offered to hold Hernandez down during the act. Id. ¶¶ 46, 48. Shortly thereafter, Marquez-Pruneda made a comment regarding the shape of Hernandez's breasts. Id. ¶ 51.

         There were two harassing incidents in or around June 2016, which are described in the Complaint. Id. ¶¶ 33-34.

         On July 15, 2016, Marquez-Pruneda stated in front of other co-workers that Hernandez smelled like fish and that she had not showered that day. Id. ¶¶ 39-40. He then threatened Hernandez, stating he would “get his wife to come to work and assault [Hernandez].” Id. ¶ 41. On the same day, Marquez-Pruneda told Hernandez that he wanted to “suck [her] breasts.” Id. ¶ 44.

         Hernandez reported the harassment sometime in July to the President of ECH, John Hartman. Id. ¶¶ 58-60. Hernandez alleges that Hartman told Defendants a few days later to cease their behavior. Id. ¶ 62. She alleges that “Defendants” threatened she and her boyfriend in retaliation for reporting the harassment. Id. ¶ 63. Hernandez requested a transfer to another project away from Defendants, but was regularly scheduled to work with the same employees following the report. Id. ¶¶ 64-65.

         Hernandez filed the instant action on November 22, 2017, alleging the following claims against the individually named Defendants:[2] (1) Unlawful Discrimination under the PHRA § 955(a); (2) Retaliation under the PHRA § 955(d); (3) Aiding and Abetting under the PHRA § 955(e); and (4) Assault and Battery.

         Marquez-Pruneda has moved to dismiss all of the claims alleged against him for failure to state a claim upon which relief may be granted pursuant to Federal Rule Civil Procedure 12(b)(6). Def.'s Supp. Mem. 1, ECF No. 15.

         III. STANDARD OF REVIEW

         In rendering a decision on a motion to dismiss, this Court must “accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). Only if “the ‘[f]actual allegations . . . raise a right to relief above the speculative level'” has the plaintiff stated a plausible claim. Id. at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 540, 555 (2007)). “A claim has facial plausibility when the plaintiff pleads 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). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. (explaining that determining “whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense”). The defendant bears the burden of demonstrating that a plaintiff has failed to state a claim upon which relief can be granted. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

         IV. ANALYSIS

         A. Hernandez withdraws her claim for discrimination under the PHRA.

         Section 955(a) of the PHRA addresses discrimination in the workplace on the basis of a protected class. Section 955(a) states, in relevant part, that it is unlawful

For any employer because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability or the use of a guide or support animal because of the blindness, deafness or physical handicap of any individual or independent contractor, to refuse to hire or employ or contract with, or to bar or to discharge from employment such individual or independent contractor, or to otherwise discriminate against such individual or independent contractor with respect to compensation, hire, tenure, terms, conditions or privileges of employment or contract, if the individual or independent contractor is the best able and most competent to perform the services required.

43 P.S. § 955(a).

         Hernandez, in her Memorandum in Opposition to the Motion to Dismiss, states that she does not challenge the Motion to Dismiss this claim and “in fact withdraws her claim . . . for discrimination as against Marquez-Pruneda only.”[3] Pl.'s Opp. Mot. Dismiss 7[4] n.1, ECF No. 21. The state law claim of discrimination as to Marquez-Pruneda is therefore dismissed.

         B. The claim for retaliation under the PHRA is dismissed because there are insufficient factual allegations of ...


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