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Silla v. One Three Five, Inc.

United States District Court, W.D. Pennsylvania

June 26, 2018

ONE THREE FIVE, INC., doing business as BLUSH, et al. Defendants.



         Presently 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 respects.

         Factual and Procedural History

         Plaintiff 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).

         On 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. (Id.)

         At some 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).

         On 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).

         On 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).

         In 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).

         This 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).

         Standard of Review

         A 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).


         I. Piercing the Corporate Veil

         Defendants 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.

         a. Individual Liability Under the ADA and Title VII (Counts I, II, III, IV, VI, and VII)

         Individuals 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).

         b. Individual Liability Under the FLSA and PMWA (Count X)

         “The 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 separate defendant.

         c. Individual Liability for State Torts (Counts V, VIII, IX, XI, and XII)

         Finally, 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.

         Accordingly, because the language of the statues at issue governs the applicable liability analysis, the doctrine of piercing the corporate veil is irrelevant.

         II. Silla's Discrimination Claims Against Blush

         In 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.

         a. The Applicability of ADA Title ...

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