United States District Court, E.D. Pennsylvania
ORDER DEFENDANT MARQUEZ-PRUNEDA'S MOTION TO
DISMISS, ECF NO. 15 - GRANTED
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
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.
alleges that she was subject to sexual harassment by her
coworkers. The Complaint alleges as follows: From June 2015
until March 17, 2017,  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.
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.
were two harassing incidents in or around June 2016, which
are described in the Complaint. Id. ¶¶
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.
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.
filed the instant action on November 22, 2017, alleging the
following claims against the individually named
Defendants: (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.
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.
STANDARD OF REVIEW
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)).
Hernandez withdraws her claim for discrimination under the
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
43 P.S. § 955(a).
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.” Pl.'s Opp. Mot. Dismiss
n.1, ECF No. 21. The state law claim of discrimination as to
Marquez-Pruneda is therefore dismissed.
The claim for retaliation under the PHRA is dismissed because
there are insufficient factual allegations of ...