United States District Court, W.D. Pennsylvania
C. MITCHELL UNITED STATES MAGISTRATE JUDGE
pending before the Court is a second motion to dismiss the
pro se amended complaint (ECF No. 16), with brief in
support (ECF No. 16-1), filed by defendants, One Three Five,
Inc., doing business as, Blush Gentleman's Club (Blush),
and Albert Bortz (Bortz), collectively, Defendants. For the
reasons that follow, the Court will grant Defendants'
motion as to Count IV and deny the motion in all other
and Procedural History
ReJeana Silla (Silla) was hired by Bortz as an exotic dancer
in 2005. (ECF No. 13, ¶18). As a dancer, Silla worked an
average of 4-6 days per week, often in excess of 40 hours.
(Id. at ¶¶ 22-24). In addition to dancing
at Blush, Silla would travel to perform at other clubs
nation-wide, and was expected to promote Blush at other
events. (Id. at ¶¶ 19-21). Silla was not
paid by Defendants; rather, she kept her earnings each shift,
out of which she was required to pay house fees, DJ fees, and
other “tip outs.” (Id. at ¶¶
23, 27, 30). Defendants also received from Blush dancers a
percentage of all credit card sales, a percentage of tips
applied to those credit card sales, and a portion of any
income earned from VIP rooms and private dances.
(Id. at ¶¶ 28-29).
November 23, 2015, following a job suspension, and months of
alleged harassment and defamation culminating in a delusional
episode during which she alleges she was sexually assaulted
by a former Blush employee, Silla was admitted to Western
Psychiatric Hospital, where she remained for 12 days.
(Id. at ¶¶ 37-49). While in the hospital,
Silla was visited by Bortz's wife, Sabrina, who had Silla
sign a release form authorizing Defendants to access her
medical records, including the results of a drug test.
(Id. at ¶ 50). Upon her discharge, Silla
returned to work at Blush; however, after a few days she
contacted Bortz and indicated that she was feeling
overwhelmed and requested a few weeks off of work.
(Id. at ¶ 51). Bortz approved this break.
point in early January of 2016, Silla contacted Bortz to
negotiate her return to work. (Id. at ¶ 53). As
a condition of her continued employment, Bortz asked Silla to
authorize release of her mental health records to Bortz.
(Id.) Silla obliged; however, upon returning to
work, she discovered that Bortz had shared her medical
information with other employees and she was subjected to
harassment by other dancers and Blush's general manager.
(Id. at ¶ 54).
February 7, 2016, Silla was informed by Blush's general
manager that Defendants were terminating her employment on
the basis that “they couldn't have her work there
anymore because she was hearing voices.” (Id.
at ¶ 55). Silla denied those accusations. (Id.)
The following week, Silla spoke to Bortz who confirmed
Silla's firing and refused to discuss with her the
possibility of rehiring. (Id. at 57).
April 19, 2017, Silla attempted to discuss the situation with
Bortz in person, but was denied entry to Blush. (Id.
at 58). That same day, Silla filed an initial complaint with
the Pennsylvania Human Relations Commission (PHRC).
(Id. at 59). On July 6, 2017, Silla filed a formal
complaint for discrimination with the Pennsylvania Equal
Employment Opportunity Commission (EEOC) and the PHRC.
(Id. at 60). The EEOC issued Silla a right to sue
letter on July 31, 2017 (ECF No. 1-1). On October 27, 2017,
Silla, acting pro se, filed her original complaint.
(ECF No. 1). On December 27, 2017, Defendants filed a motion
to dismiss (ECF No. 3), and a brief in support thereof. (ECF
No. 4). In response, Silla filed an amended complaint,
alleging that her termination was in violation of the
Americans with Disabilities Act (ADA), 42 U.S.C. §§
12101, et seq.; Title VII of the Civil Rights Act of
1964 (Title VII), 42 U.S.C. 1981, et seq.; the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 201 et
seq.; the Pennsylvania Minimum Wage Act (PMWA), 43 P.S.
§ 333.101, et seq.; and the Pennsylvania Wage
Payment & Collection Law (WPCL), 43 P.S. § 260.1,
et seq. (ECF No. 13). Silla also raised a number of
state court claims, including invasion of privacy, breach of
contract, fraud, unjust enrichment, and negligence.
(Id.) In light of this filing, the Court terminated
Defendants' motion. On February 9, 2018, Defendants filed
a motion to dismiss the amended complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) (ECF No. 16), along with a
brief in support (ECF No. 17). Silla has filed a brief in
opposition (ECF No. 19).
their motion, Defendants argue that (1) the entirety of the
complaint as it is asserted against Bortz in his individual
capacity should be dismissed because Silla has failed to
assert facts sufficient to pierce the corporate veil; (2)
Counts I, II, III, VI, and VII should be dismissed because
Silla has failed to prove that Defendants qualify as
“employers” under either the ADA, or Title VII;
(3) Count IV should be dismissed because Silla has failed to
state a claim under Title III of the ADA; (4) Count X should
be dismissed because Silla was at no time
“employed” by Defendants as that term is defined
by the FLSA or the PMWA; (5) Silla's execution of medical
record releases precludes her invasion of privacy claim
(Count V); (6) Counts VIII and IX (in which Silla asserts
state court claims for wrongful discharge and fraud,
respectively) should be dismissed because no valid employment
contract existed between the parties; (7) Silla fails to
state a plausible claim for relief with respect to her
allegations of unjust enrichment (Count XI); and (8) Silla
has failed to set forth a viable claim to sustain her
allegations of negligence (Count XII). (ECF No. 16-1).
Court has jurisdiction pursuant to 28 U.S.C. §§
1331, 1343, and 1367. The parties have consented to proceed
before the undersigned pursuant to 28 U.S.C. § 636(c).
(ECF No. 7, 9).
defendant moving to dismiss under Fed.R.Civ.P. 12(b)(6) bears
the burden of proving that the plaintiff has failed to state
a claim for relief. See Fed.R.Civ.P. 12(b)(6); see also,
e.g., Hedges v. United States, 404 F.3d 744,
750 (3d Cir. 2005). The United States Supreme Court opinions
in Bell Atlantic Corporation v. Twombly, 550 U.S.
544 (2007) and, more recently, in Ashcroft v. Iqbal,
556 U.S. 662 (2009), have shifted pleading standards from
simple notice pleading to a more heightened form of pleading,
requiring a plaintiff to plead more than the possibility of
relief to survive a motion to dismiss. With the Supreme Court
instruction in mind, the Court of Appeals for the Third
Circuit has outlined a two-part analysis that courts should
utilize when deciding a motion to dismiss for failure to
state a claim. First, the factual and legal elements of a
claim should be separated. In other words, while courts must
accept all of the complaint's well-pleaded facts as true,
they may disregard any legal conclusions. Second, courts then
decide whether the facts alleged in the complaint are
sufficient to demonstrate that the plaintiff has a
“plausible claim for relief.” Iqbal, 129
S.Ct. at 1950. That is, a complaint must do more than allege
the entitlement to relief; its facts must show such an
entitlement. Fowler v. UPMC Shadyside, 578 F.3d 203,
210-11 (3d Cir. 2009). Finally, as Silla has filed her
complaint pro se, we must liberally construe her
pleadings, and we will “apply the applicable law,
irrespective of whether a pro se litigant has mentioned it by
name.” Holley v. Dep't of Veteran Affairs,
165 F.3d 244, 247-48 (3d Cir.1999).
Piercing the Corporate Veil
first ask this Court to dismiss all claims filed against
Bortz in his individual capacity on the basis that Silla has
failed to allege facts sufficient to support piercing the
corporate veil. (ECF No. 16-1, pg. 3-4). Although Silla's
pro se amended complaint fails to delineate which
causes of action she seeks to bring against which defendant,
the federal and state statutes upon which she relies limit
the liability of certain classes of defendants. Accordingly,
Defendants' argument is irrelevant and, as detailed
infra., there is no need to conduct a piercing
analysis with respect to any of Silla's claims.
Individual Liability Under the ADA and Title VII (Counts
I, II, III, IV, VI, and VII)
cannot be held personally liable under either the ADA or
Title VII, thus the Court presumes that Counts I, II, III,
IV, VI, and VII are asserted against Blush alone, as any
claims against Bortz in his individual capacity under those
statutes cannot proceed. See Koslow v. Commonwealth of
Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002),
citing EEOC v. AIC Security Investigations,
Ltd., 55 F.3d 1276, 1279-82 (7th Cir. 1995) (holding
that held that an individual owner and sole shareholder of
corporation not liable as an individual under the ADA);
Clarke v. Whitney, 907 F.Supp. 893 (E.D.Pa. 1995)
(the court held that a principal shareholder and officer not
individually liable under the ADA); Sheridan v. E.I.
DuPont de Nemours & Co., 100 F.3d 1061, 1077 (3d
Cir. 1996) (finding that individual employees cannot be held
liable under Title VII); Kachmar v. SunGard Data Sys.,
Inc., 109 F.3d 173, 184 (3d Cir. 1997) (same).
Individual Liability Under the FLSA and PMWA (Count X)
FLSA imposes individual liability on ‘any person acting
directly or indirectly in the interest of an employer in
relation to an employee....' Aside from the corporate
entity itself, a company's owners, officers, or
supervisory personnel may also constitute ‘joint
employers' for purposes of liability under the
FLSA.” Thompson v. Real Estate Mortg. Network,
748 F.3d 142, 153 (3d Cir. 2014), citing 29 U.S.C.
§ 203(d). Given the substantially similar language of
the PMWA, this Court sees no reason to construe that statute
differently. Accordingly, Silla's amended complaint will
be interpreted to raise FLSA and PMWA claims against each
Individual Liability for State Torts (Counts V, VIII, IX, XI,
with respect to Silla's state court claims, this Court is
mindful that “[a] corporate officer is individually
liable for the torts he personally commits and cannot shield
himself behind a corporation when he is an actual participant
in the tort.” Donsco, Inc. v. Casper Corp.,
587 F.2d 602, 606 (3d Cir.1978). A fair reading of the
amended complaint demonstrates that Silla's tort claims
are meant to be asserted against Bortz individually.
because the language of the statues at issue governs the
applicable liability analysis, the doctrine of piercing the
corporate veil is irrelevant.
Silla's Discrimination Claims Against Blush
Counts I through IV, VI, and VII of her amended complaint,
Silla asserts discrimination claims against Blush under
Titles I and III of the ADA, and Title VII. For ease of
disposition, this Court's analysis begins with
Silla's Title III claim.
The Applicability of ADA Title ...