SMITH v. RB DISTRIBUTION, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHANIKA SMITH, :

Plaintiff, : CIVIL ACTION

: No. 20-900

v. :

:

RB DISTRIBUTION, INC. ET AL :

:

Defendants. :

McHUGH, J. October 28, 2020

MEMORANDUM

Cases brought under Title VII alleging hostile work environments necessarily involve a

series of qualitative judgments about the acceptability of different kinds of behavior. Courts are

required to draw lines between conduct that is deemed merely “inappropriate” and conduct so

offensive as to have a detrimental effect on a reasonable employee trying to perform their duties

in the workplace. These cases frequently spark motions to dismiss, with the employer arguing

that even where behavior is offensive to some degree, it should not be actionable. This is one

such case.

In some respects, Plaintiff pleads her case in conclusory ways that do not suffice to

support recovery. But at the core of this action are highly specific allegations that, if proven,

paint a troubling picture of graphic, sexualized harassment for over a year. Plaintiff further

alleges that management ignored her initial report and that it took two additional reports while

she endured six more months of harassment until steps were taken to discipline her harasser.

And finally, Plaintiff pleads that she was ultimately terminated because she had complained.

Despite certain deficits, Ms. Smith’s First Amended Complaint plausibly alleges that she

was subjected to a sexually hostile work environment, disparate treatment, and retaliation in

connection with her sexual harassment complaint. Defendants’ Motion to Dismiss will therefore

be granted in part and denied in part.

I. Procedural Posture

This sex discrimination and retaliation action is brought pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), the Pennsylvania Human Relations

Act, 43 Pa. Cons. Stat. §§ 951-963 (“PHRA”), and the Philadelphia Fair Practices Ordinance,

Phila. Code § 9-1100 et. seq. (“PFPO”). See Compl. ¶ 1, ECF No. 1. Plaintiff Shanika Smith

also pleads common law claims for Intentional Infliction of Emotional Distress (“IIED”),

Negligent Hiring/Supervision/Retention, and Assault and Battery. Smith amended her complaint

on June 16, 2020 and included the same causes of action. See First Am. Compl. ¶ 1, ECF No.

11.

Individual Defendants Gerald Bumpers, Ed Ivoc, and corporate Defendants Dorman

Products, Inc. and RB Distribution, Inc. (the parent company of Dorman) have filed a motion to

dismiss Plaintiff’s Complaint under Fed. R. Civ. P. 12(b)(6). See Defs.’ Mot. Dismiss Pl.’s First

Am. Compl., ECF No. 13. Defendants claim that Smith’s pleadings are conclusory and

insufficient as a matter of law and that her Title VII, PHRA, and PFPO claims are either

untimely or barred on exclusivity grounds. See Mem. Supp. Mot. Dismiss Pl.’s First Am.

Compl. 9, ECF No. 13-1 (“Defs. Mem.”). Additionally, Defendants have moved under Rule

12(f) motion to strike portions of Plaintiff’s pleadings. Id. at 34.

Defendants’ Motion to Dismiss does not encompass the claims against Jose Rosario,

which include discrimination under the PHRA, retaliation under the PHRA, aiding and abetting

under the PHRA, discrimination under the PFPO, retaliation under the PFPO, aiding and abetting

under the PFPO, intentional infliction of emotional distress, and assault and battery. This Court

entered a default against Mr. Rosario on May 23, 2020. See ECF No. 8. Mr. Rosario

subsequently retained counsel, and I granted his motion to set aside the default.

II. Factual Allegations

Around October 5, 2016, Dorman Products, Inc. hired Shanika Smith as a temporary

“return processor” to inspect defective car parts. First Am. Compl. ¶ 33. Earlier in the summer,

Dorman had employed Jose Rosario as a temporary “Material Handler.” Id. ¶ 34. The company

converted both employees to permanent positions in March 2017. Id. ¶¶ 34, 35.

Smith alleges that Rosario began to make unwanted, sexualized advances towards her in

the spring of 2017. Rosario would ask Smith out on dates, offer to drive her to and from work,

and propose that Smith have sex with him for money. Id. ¶ 37. Rosario also subjected Smith to

a series of degrading comments, where he made reference to her “really fat ass,” told her that he

was aroused by the “vagina print of [her] jeans,” and declared that she was “making him hard.”

Id. ¶¶ 40, 39, 47. Smith told Rosario that she had a boyfriend and that she wanted him to stop,

but he persisted in his efforts. First Am. Compl. ¶ 44. For example, after Smith reminded

Rosario that he was married, he told her that he would treat her like a “queen” if they were in a

relationship. Id. ¶ 46.

Rosario’s behavior escalated in the fall of 2017. Around that time, Smith joined another

male coworker in accepting a ride home from Rosario. Id. ¶ 48. But after Rosario dropped off

the coworker, he immediately placed his hand on Smith’s thigh and attempted to grope her

vagina, saying “[f]uck, that pussy looks fat, Mommy.” Id. ¶ 49. Smith pleaded with Rosario to

“stop” and moved away. Id. ¶ 50. Following this incident, Smith reported Rosario to her Shirley

Chernyk, her team leader, and subsequently, Gerald Bumpers, a Dorman Human Resources

representative, in December 2017. Id. ¶¶ 52, 53. Smith also told Ed Ivoc, her direct supervisor,

about Rosario’s actions. First Am. Compl. ¶ 61. Following Smith’s complaint, Shirley Chernyk

also reported to management that she had regularly observed Rosario “lurking near [Smith] as

she worked.” Id. ¶ 60.

Smith further alleges that Dorman’s response to her December 2017 complaint was

minimal and inadequate. Bumpers did not undertake an investigation into Smith’s harassment or

reprimand Rosario. Id. ¶¶ 55, 56. Rosario was undeterred by management’s response (or lack

thereof) to Smith’s complaint and persisted in his behavior. Around February 2018, Rosario told

Smith, “You’re so thick. The things I would do to you if you gave me a chance.” Id. ¶ 67. He

also offered Smith money in exchange for sexual favors, which Smith refused. Id. ¶ 68.

Throughout spring 2018, Rosario made continued to make sexualized comments about Smith’s

body and refer to her as his “queen.” Id. ¶ 78.

After Smith filed her sexual harassment complaint, her relationships with her immediate

supervisor and co-workers turned antagonistic. Smith claims that she previously had a cordial

relationship with Ivoc, who also supervised Rosario, see First Am. Compl. ¶ 72, but once she

complained to management about Rosario, Ivoc began to address Smith in a hostile tone or

ignore her whenever she brought up a concern about the business. Id. ¶ 62. Ivoc also failed to

intervene when Rosario and Sophia (last name unknown)—a male friend and coworker of

Rosario—began to “excessively monitor” Smith’s work and “intentionally sabotage her

performance metrics” by providing her with oversized car parts to return. Id. ¶¶ 58, 71, 72. In

March 2018, Smith spoke with Ivoc about Rosario and Sophia’s behavior. Id. ¶ 74. However,

Ivoc did not investigate or address Smith’s concerns; instead, he disciplined her for two days

without pay. Id. ¶ 74.

In response to Rosario’s harassment, which had continued throughout the spring of 2018,

Smith made a third report to Gerald Bumpers around June 2018. Id. ¶ 81. Defendant Dorman

terminated Rosario shortly after. First Am. Compl. ¶ 82.

Smith further alleges that her relationship with Ivoc did not improve following Rosario’s

termination, and that he continued to treat her rudely following Smith’s June 2018 complaint. Id.

¶ 84. Sophia also continued to target Smith, and on August 31, 2018, Sophia and Smith had an

altercation about who was supposed to process a car part, even though it was not Smith’s turn to

process the part. Id. ¶ 86. Sophia yelled at Smith, “I don’t deal with you because of what you

did to [Rosario].” Id. ¶ 87. The next day, Ivoc called Smith into his office to discuss the

argument between Smith and Sophia; when Smith tried to explain, Ivoc called her a “liar” and

told Smith to “just leave.” Id. ¶ 89. Smith was suspended two days later, id. ¶ 90, and

eventually fired by Gerald Bumpers on September 5, 2018. First Am. Compl. ¶ 92.

In response to these events, Smith filed a charge around March 5, 2020 with the Equal

Employment Opportunity Commission (“EEOC”), the Pennsylvania Human Relations

Commission (“PHRC”), and the Philadelphia Commission on Human Relations (“PCHR”). Id. ¶

24. The charge alleged that Defendants had engaged in discriminatory and retaliatory conduct,

in violation of Title VII, the PHRA, and the PFPO. Id. ¶ 24.

III. Standard of Review

The well-established standard elucidated in Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009) governs motions to dismiss under Fed. R. Civ. P. 12(b)(6). To survive a

motion to dismiss, a complaint must include sufficient factual allegations to “show that the claim

is facially plausible.” Id. A court must then “accept all factual allegations as true, construe the

complaint in the light most favorable to the plaintiff, and determine whether, under any

reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

Defendants have also filed a 12(f) motion to strike. Courts “may strike from a pleading

an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.

Civ. P. 12(f). There is “general judicial agreement” that these motions “should be denied unless

the challenged allegations have no possible relation or logical connection to the subject matter of

the controversy.” 5C Arthur R. Miller, Mary Kay Kane & A. Benjamin Spencer, Federal

Practice and Procedure § 1382 (3d. ed. 2020); see also DeLa Cruz v. Piccari Press, 521 F.

Supp. 2d 424, 428 (E.D. Pa. 2007) (“[S]triking a pleading is a drastic remedy to be resorted to

only when required for the purposes of justice and should be used sparingly”).

IV. Discussion

A. Title VII Disparate Treatment

Defendants claim that Plaintiff’s disparate treatment claim must be dismissed because she

does not set forth sufficient facts to demonstrate that her termination was linked to her gender.

See Defs. Mem. 15. Defendants further argue that Plaintiff’s allegations of discrimination with

respect to her other terms and conditions of employment lack the specificity required to survive a

motion to dismiss. Id. at 15-16.

After considering the record, I find that Smith has proffered enough evidence to raise the

inference that Defendants engaged in sex-based disparate treatment when they terminated her on

September 5, 2018. However, I grant Defendants’ motion with respect to Smith’s cursory

allegations of disparate treatment in other aspects of her employment.

In order to establish a prima facie case of disparate treatment, a plaintiff must show that

(1) she is a member of a protected class; (2) she was qualified for the position she sought to

retain; (3) she suffered an adverse employment action; and (4) the action occurred under

circumstances that could give rise to an inference of intentional discrimination. See Makky v.

Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). This prima facie burden is “not onerous.” Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). As the Third Circuit has

repeatedly recognized, the requirements of a prima facie case are flexible and “the fourth

element must be relaxed in certain circumstances.” Pivirotto v. Innovative Systems, Inc., 191

F.3d 344, 357 (3d Cir. 1999) (citing Torre v. Casio, Inc., 42 F.3d 825, 831 (3d Cir. 1994))

(internal quotations omitted). A plaintiff may meet her prima facie burden “by demonstrating

generally that ‘she was not hired for [a] position or was fired from it under circumstances that

could give rise to an inference of unlawful discrimination.’” Id. (citing Waldron v. SL Indus.,

Inc. 53 F.3d 491, 494 (3d Cir. 1995)).

The first two elements of Smith’s disparate treatment claim are not in real dispute. Smith

identifies as a woman and is a member of a class protected by Title VII’s sex discrimination

provisions. 42 U.S.C. §§ 2000e et seq. Smith has also claimed—and Defendants do not

contest—that she was qualified for her position and that Defendant Dorman made her a

permanent employee in March 2017. See First Am. Compl. ¶ 35. Discovery will likely reveal

further evidence that Smith was a qualified employee.

Smith’s termination also constitutes a paradigmatic adverse employment action. Title VII

prohibits employers from discharging individuals “because of such individual’s … sex.” 42

U.S.C. § 2000e–2(a)(1). The Supreme Court has also defined an adverse action as one that

results in “a significant change in employment status, such as hiring [and] firing.” Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

Smith’s factual allegations, construed in the light most favorable to her, raise a

reasonable inference that her gender played a motivating or determinative factor in her

termination. As the Third Circuit noted in Jensen v. Potter, evidence that a woman was

subjected to adverse employment actions following a complaint of sexual harassment will almost

always “give rise to a reasonable inference that the harassment [based on the complaint] would

not have occurred if the person making the complaint were a man” and present a question to the

trier of fact. 435 F.3d 444, 454 (3d Cir. 2006), abrogated on other grounds by 548 U.S. 53

(2006). Here, Smith has claimed that she reported Rosario’s conduct in December 2017 and

March 2018 but received little to no response from Defendants. See First Am. Compl. ¶¶ 52, 55,

56. Smith has further alleged that she was suspended without pay in March after reiterating her

concerns, id. ¶ 74,1 and that Defendant Ivoc, who was likely involved in the decision to terminate

her, had treated her with hostility and called her a “liar” shortly before her termination. Id. ¶¶

84, 89. These claims plausibly suggest that Smith would not have been terminated had she been

a man. See Jensen, 435 F.3d at 454.

Defendants take issue with Smith’s failure to identify specific comparators at this stage,

but their emphasis on comparator evidence is overly rigid. See Defs. Mem. 14 (urging dismissal

because “[Smith] sets forth allegations as to how Smith, and only Smith, was allegedly treated”).

As the Supreme Court recently emphasized, “an employer cannot escape liability by

1 The March suspension is not actionable in its own right because it falls outside of the 300-day statutory period but

may be considered as background evidence of discrimination. See United Air Lines Inc. v. Evans, 431 U.S. 553, 558

(1977) (noting that a discriminatory act that is not the basis of a timely charge “may constitute relevant background

evidence in a proceeding in which the status of a current practice is at issue”); see also Stewart v. Rutgers, the State

University, 120 F.3d 426, 433 (3d Cir. 1997) (establishing that while a discrimination claim based on a tenure denial

was itself barred, the events surrounding the denial were relevant evidence that could be used at trial).

demonstrating that it treats males and females comparably as groups.” Bostock v. Clayton

County, Georgia, 140 S.Ct. 1731, 1744 (2020). The existence of comparators may serve a useful

evidentiary function but firing a woman because she fails to conform to gender stereotypes

constitutes a violation on its own terms. Id. at 1741; see also Price Waterhouse v. Hopkins, 490

U.S. 228, 251 (1989) (“stereotyped remarks can certainly be evidence that gender played a

part”); Back v. Hastings on Hudson Union Free Sch. Dist., 36f F.3d 107, 122 (2d Cir. 2004)

(“stereotyping of women as caregivers can by itself and without more by evidence of an

impermissible, sex-based motive”). Discovery may also reveal evidence that Smith’s

termination was motivated by sex stereotypes, including the pernicious view that women who

file sexual harassment and gender-based violence complaints are liars.2

The evidence, when construed in favor of Smith, suffices to demonstrate that she was

terminated under circumstances that could give rise to an inference of unlawful discrimination.

Because Plaintiff has established a prima facie case of disparate treatment, the burden now shifts

to Defendants to offer a legitimate, nondiscriminatory reason for the adverse employment action.

See Burdine, 450 U.S. at 254. Nonetheless, to the extent that Smith alleges other adverse actions

that merely parrot the statutory standards, these claims do not carry the presumption of truth at

the motion to dismiss stage.3 See Connelly v. Lane Const. Corp., 809 F.3d 780, 790-791 (3d Cir.

2016).

2 See, e.g., Deborah Tuerkheimer, Incredible Women: Sexual Violence and the Credibility Discount, 166 U. Pa. L.

Rev. 1, 9 (2017) (describing “recurring tropes” of disbelief accompanying female rape victims, namely that “the

rape accuser is malicious or vindictive and therefore lying about her rape; she is regretful about consenting to sexual

activity with the accused and therefore lying about her rape; or she is incapable of assessing whether she consented

due to intoxication, and therefore lying when she claims otherwise”).

3 These allegations include assertions that Defendants “engaged in unlawful employment practices prohibited by

Title VII by intentionally discriminating against Plaintiff with respect to her compensation, terms, conditions,

training and privileges of employment because of her sex and gender.” First Am. Compl. ¶ 111. Other boilerplate

allegations include the claim that “Defendants subjected Plaintiffs to adverse tangible employment actions—defined

as significant changes in Plaintiffs’ employment status, discipline, denial of training, failure to promote,

B. Title VII Hostile Work Environment

Defendants first argue that Plaintiff’s hostile work environment is untimely, even under a

continuing violation theory, as Smith does not identify any specific instances of harassment that

occurred after “spring of 2018.” Defs. Mem. 17. Turning to the merits, Defendants further

claim that Rosario’s conduct does not rise to the level of “severe or pervasive harassment” and

that Smith cannot show respondeat superior liability, as the Defendants’ alleged failure to take

remedial action fell outside of the Title VII statutory window for actionable conduct. Id. at 19-

22.

I find that Smith’s hostile work environment claim and Defendants’ failure to take

remedial action are actionable as continuing violations. For purposes of this motion, I also

conclude that Smith experienced harassment that could be classified as severe or pervasive.

1. Smith’s Allegations are Timely and May Be Aggregated as Continuing Violations

Smith filed a charge with the EEOC on March 5, 2019. First Am. Compl. ¶ 24. Under

Title VII, complainants may file a charge with the EEOC within 300 days of the date of the

alleged discriminatory practice. 42 U.S.C. § 2000e-5(e)(1). Three hundred days prior to March

5, 2019 is May 9, 2018.

When assessing timeliness, the Supreme Court has differentiated between “discrete acts”

and “hostile work environments.” For discrete acts, which are “easy to identify” and include

“termination, failure to promote, denial of transfer, or refusal to hire,” parties must file charges

within the statutory timelines or “lose the ability to recover for it.” National R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 114, 110 (2002). Hostile work environments, by contrast, are

reassignment with significantly different job responsibilities, and decisions causing significant changes in her

employment benefits.” Id. ¶ 112.

made up of separate acts; even if the acts are not actionable in their own right, they may

collectively comprise a discriminatory employment practice. Id. at 115 – 117. Because a hostile

work environment “cannot be said to occur on any particular day,” plaintiffs may recover for acts

that predate the statutory period if the acts are part of a “continuing violation.” Id. at 115–117.

To demonstrate a continuing violation, Smith “must show that all acts which constitute

the claim are part of the same unlawful employment practice and that at least one act falls within

the applicable limitations period.” Mandel v. M&Q Packaging Corp, 706 F.3d. 157, 166–167

(3d Cir. 2013). The Third Circuit has directed district courts to consider “subject matter” and

“frequency” when distinguishing continuing violations from isolated incidents. Id. at 166.

Courts should look to “whether the violations constitute the same type of discrimination”

(subject matter) and whether the conduct “involved similar conduct by the same individuals,

suggesting a persistent, ongoing pattern” (frequency). Id. at 166 n.2; see id. at 167 (noting that

the Supreme Court abrogated a previous permanency requirement in Morgan, 536 U.S. 101,

117–118 (2002)).

Smith has clearly satisfied the “subject matter” and “frequency” requirements. The

conduct that she describes as a hostile environment includes repeated sexualized advances by the

same individual—Rosario—that began in the spring of 2017 and ended only when he was fired

in June 2018. See First Am. Compl. ¶¶ 36, 37, 49, 78. Smith describes at least six instances of

explicit, unwelcome sexualized comments, which include Rosario telling her that he was aroused

by the “vagina print from [her jeans];” that she “[had] a really fat ass;” that he would treat her

like a queen if she were his; that she was making him hard; that her “pussy looks fat” as well as

fantasizing about the things he would do to her if she gave him a “chance.” Id. ¶¶ 39, 40, 46, 47,

49, 67. She also states that Rosario attempted to grab her vagina and offered her money in

exchange for sexual favors. Id. ¶¶ 49, 68. Rosario’s alleged actions constitute the same type of

sexually discriminatory harm and occurred on a frequent enough basis to suggest an “ongoing

pattern.” Mandel, 706 F.3d at 166–167.

Defendants argue that Smith’s hostile work environment claim must be dismissed

because a court could not infer that Rosario acted after May 8, 2018. At the motion to dismiss

stage, I must “assume all remaining factual allegations to be true, construe those truths in the

light most favorable to the plaintiff, and then draw all reasonable inferences from them.”

Connelly, 809 F.3d at 790 (citing Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1

(3d Cir. 2014)). Plaintiff’s pleadings lack detail; for example, she claims, without specifying,

that Rosario made uninvited comments “on almost a daily basis.” First Am. Compl. ¶ 37.

However, Smith’s statement that she complained about Rosario’s conduct for the third time in

June 2018 invites at least two inferences. A factfinder could believe that Rosario ceased his

targeting of the plaintiff after the spring of 2018 but that Smith, concerned that the harassment

would begin anew, preemptively filed a third complaint. But in the alternative, a factfinder could

also maintain that Smith filed her third complaint because Rosario persisted in his conduct after

May 9, 2018. At this stage of the litigation, I am bound to accept the latter explanation and infer

that at least one discriminatory act occurred within the statutory period.

2. Smith’s Hostile Work Environment Allegations Survive a Motion to Dismiss

Turning to the merits, Smith must establish that 1) she suffered intentional discrimination

because of her sex, 2) the discrimination was severe or pervasive, 3) the discrimination

detrimentally affected her, 4) the discrimination would detrimentally affect a reasonable person

in like circumstances, and 5) the existence of respondeat superior liability. See Mandel, 706

F.3d. at 167.

a. Smith Has Demonstrated that Rosario Acted “Because of Sex”

A reasonable factfinder could readily believe that Smith’s gender motivated Rosario’s

conduct. In Jensen, the Third Circuit reasoned that when harassment involves “sexual

propositions, innuendo, pornographic materials, or sexually derogatory language,” an inference

of sex-based intent will usually arise. 435 F.3d at 454. Under Third Circuit precedent, Smith’s

pleadings regarding Rosario’s repeated, sexualized conduce clearly suffice to suggest a sex-

based motivation.4

b. Smith Experienced Severe or Pervasive Conduct

Rosario’s alleged conduct toward Smith would also meet the severe or pervasive

standard. Conduct is severe or pervasive when it is “sufficient ‘to alter the conditions of [the

employee’s] employment and create an abusive working environment.’” Moody v. Atlantic City

Board of Education, 870 F.3d 206, 214 (3d Cir. 2017) (citing Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 67 (1986)). To assess whether an environment is abusive or hostile, a district court

must consider the totality of the circumstances, which include “the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee's work

4 Overtly sexualized conduct is usually understood to be gender-based. In this vein, Smith has pled that Rosario did

not treat male employees in the same sexualized manner. See First Am. Compl. ¶ 42. But some legal scholars have

pointed out that this assumption, while efficient, may under circumstances fail to “provide an adequate account of

why sexual harassment is a form of sex discrimination.” Katherine M. Franke, What’s Wrong with Sexual

Harassment, 49 Stan. L. Rev. 691, 693 (1997). Such a narrow formulation may limit courts in their ability to

address gendered harassment when it takes other forms or when it involves individuals or the same gender.

Conceptually, Smith’s theory that the harassment she experienced was because of sex could potentially be supported

on other grounds. Rosario allegedly made specific anatomical references associated with women, referring to

Smith’s “pussy” and stating that he was “aroused by the vagina print from [jeans].” He also attempted to grope

Smith’s vagina, an act that is decidedly linked to her sex. Alternatively, a factfinder might conclude that Rosario’s

sexualized conduct and references to Smith as “mommy” and his “queen” represent sex stereotypes of women as

passive sexual objects. Such subtle distinctions can have greater significance in a case where a plaintiff contends

that the harasser is the same gender as the harassed.

performance.” Mandel, 706 F.3d at 168 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23

(1993)).

Despite Smith’s best efforts to maintain a cordial and professional relationship with

Rosario, she was subjected to a torrent of graphic, sexualized conduct. On “almost a daily

basis,” Rosario reminded Smith that he viewed her solely as a collection of body parts, referring

to a “vagina print” from jeans, her “fat ass,” her “pussy,” his own erection, and exchanging

money for sex. First Am. Compl. ¶ 39, 40, 49, 47, 68. He repeatedly violated her sexual

boundaries, going so far as to attempt to grope her vagina as they rode together in a car. Id. ¶ 49.

Rosario targeted Smith for over a year, and the “intolerable” work environment that resulted

drove Smith to file three complaints against him with management. Id. ¶¶ 52, 74, 81.

Defendants attempt to frame Rosario’s alleged statements as merely “inappropriate.” I

emphatically disagree. No one in the workplace should have to endure unwelcome, anatomically

explicit, crass sexual comments. Defendants cite a series of district court and non-precedential

Third Circuit cases where the conduct at issue was found not to rise to a hostile environment.

See Defs. Mem. 19–20. But these cases clearly address conduct of a significantly different

nature. The comparison to Tourtellotte, for example, is unpersuasive, as a supervisor’s

references to women as “honey,” “pretty girls,” and “Barbie girls,” while arguably sexist, are not

nearly as explicit and graphic as the comments Rosario made to Smith. Tourtellotte v. Eli Lilly

& Co., No. 09-0774, 2013 WL 1628603, at *4 (E.D. Pa. Apr. 15, 2013), aff’d, 636 Fed. Appx.

831 (3d. Cir 2016). Viewed collectively, Smith’s account provides sufficient evidence upon

which a reasonable juror could conclude that she experienced severe or pervasive harassment

that interfered with her work performance, in violation of Title VII’s equality mandate. See

Harris, 510 U.S. at 2; see also Moody, 870 F.3d at 214.

c. The Alleged Discrimination Impacted Smith and Would Impact a Reasonable Person

Smith’s testimony also provides a basis from which a reasonable fact finder could infer

that Rosario’s conduct detrimentally impacted her and would have impacted a reasonable person

in similar circumstances. Smith routinely made her subjective feelings toward Rosario’s conduct

clear and told Rosario to stop making comments about her body. First Am. Compl. ¶ 39. She

stated that she was “extremely offended and disgusted” by his conduct. Id. ¶ 41. Smith also

reported Rosario’s conduct on three occasions and declared that his comments toward her “need

to change.” Id. ¶ 54. Smith clearly believed that her work environment was abusive. See

Harris, 510 U.S. at 21. Moreover, a reasonable person would also likely find such an

environment to be hostile and abusive, as Rosario’s alleged behavior included repeated

sexualized conduct and an attempted groping. Id.

d. Smith Has Shown Respondeat Superior Liability

And finally, Smith’s pleadings sufficiently demonstrate respondeat superior liability.

When a harassing employee does not supervise the victim, the plaintiff must show that the

“defendant knew or should have known of the harassment and failed to take prompt remedial

action.” Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293–94 (3d Cir. 1999). In assessing

Defendants’ knowledge in this case, I am not bound to solely consider events that arose during

the 300-day statutory period, as Smith has alleged sufficient facts to support application of a

continuing violation theory. See West v. Phila. Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995)

(noting that, in continuing violation cases, the “Federal Rules of Evidence and the substantive

law at issue, rather than the statutory filing period, should govern evidentiary determinations of

the trial court”). Here, Smith has claimed that she reported Rosario’s harassment to Human

Resources on three separate occasions before he was terminated in June 2018. First Am. Compl.

¶¶ 52, 74, 81. These allegations, if proven, would be sufficient to demonstrate that Defendants

had notice of the harassment. Id. ¶¶ 53, 81. Moreover, Smith has also claimed that the

Defendants did not undertake an investigation or remedial action until Rosario was terminated in

June 2018. See First Am. Compl. ¶ 55. Smith has, therefore, adequately pleaded Defendants’

knowledge and failure to take remedial action, as required under Kunin, 175 F.3d at 293–94.

C. Title VII Retaliation

Title VII’s antiretaliation provision bars employers from discriminating against

employees that oppose unlawful conduct or participate in Title VII investigations or proceedings.

42 U.S.C. § 2000e-3. Smith’s pleadings suggest three potential violations of the statute: (1) that

Defendants disciplined her in March 2018 in retaliation for her complaints; (2) that Defendants’

antagonism and refusal to remedy Rosario’s harassment fostered a retaliatory hostile work

environment in its own right; and (3) that Defendants fired her in September 2018 because she

opposed sexual harassment.

Defendants offer several arguments in opposition. First, they contend that almost all the

alleged retaliatory responses are not actionable, as they occurred prior to the statutory window.

See Defs. Mem. 22–23. Second, Defendants aver that Plaintiff has insufficiently pled the

elements of a retaliatory hostile environment theory. See Defs. Reply Mem. Supp. Mot. Dismiss

Pl.’s Compl. 8–9 (“Defs. Reply”). And third, with respect to the claim that Defendants admit is

actionable, the September 5, 2018 termination, Defendants argue that Smith has failed to proffer

facts sufficient to demonstrate causation. See Defs. Mem. 13.

I conclude that Smith may pursue her retaliation claim related to her September

termination, as well as her retaliatory hostile environment claim, a separate theory that addresses

harassment that a plaintiff has sustained because the plaintiff opposed an illegal practice or

participated in a Title VII proceeding.

1. Timeliness of Retaliation Claims

I find that Smith’s September 5, 2018 termination and ongoing retaliatory hostile

environment claims are timely. In contrast, the March 2018 suspension is not timely because it

is a discrete act that falls outside of the statutory period. Nonetheless, the suspension may be

considered as background evidence in assessing causation for the other retaliation claims.

a. September 5, 2018 Termination and March 2018 Suspension

Smith’s retaliation claim is timely insofar as relates to her September 5, 2018

termination. Termination is a “discrete” act under Title VII. See Morgan, 536 U.S. at 114

(stating that “discrete acts such as termination, failure to promote, denial of transfer, or refusal to

hire are easy to identify”). Suspension is also a discrete act. Id. at 114–116 (noting that

Morgan’s claim of wrongful suspension and discipline was a prior discrete discriminatory act

that was untimely filed and no longer actionable). “A discrete retaliatory or discriminatory act

occurred on the day that it happened. A party, therefore, must file … within either 180 or 300

days of the date of the act.” Id. at 110. In this matter, Smith filed with the EEOC on March 5,

2019 which renders all conduct following May 9, 2018, including the September 5, 2018,

termination, actionable.

By this logic, the March suspension is not actionable as retaliation, although it may be

considered as background evidence. See United Air Lines Inc. v. Evans, 431 U.S. 553, 558

(1977); Stewart v. Rutgers, the State University, 120 F.3d 426, 433 (3d Cir. 1997).

b. Retaliatory Hostile Environment Claim

Smith has also argued that she experienced retaliation that fostered a hostile work

environment. The Third Circuit has recognized retaliatory hostile work environment claims

where an employee is subjected to a hostile work environment in retaliation for having engaged

in protected activity. See Jensen, 435 F.3d at 448–450 (addressing an alleged hostile

environment that emerged as the plaintiff filed a sexual harassment complaint); see also Komis v.

Secretary of the United States Department of Labor, 918 F.3d 289, 293 (3d Cir. 2019) (affirming

plaintiffs’ ability to bring retaliatory hostile environment claims). Smith has also claimed that

Defendants are liable for acts preceding May 9, 2018, as part of a continuing violation. To

invoke the continuing violation doctrine, Smith “must show that all acts which constitute the

claim are part of the same unlawful employment practice and that at least one act falls within the

applicable limitations period.” Mandel, 706 F.3d at 165–166.

Viewing the evidence in the light most favorable to Smith, a reasonable factfinder could

find that Defendants’ failure to investigate Rosario’s harassment, discipline of Smith, and

persistent antagonism were part of the same retaliatory practice. First, Smith describes

Defendants’ failure to investigate or remediate Rosario’s alleged harassment until her complaint

in June 2018. The Supreme Court has suggested that a failure to investigate an employee’s

complaint could constitute actionable retaliation. See Burlington Northern v. White, 548 U.S. 53,

63–65 (2006) (citing with approval Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006), a case

holding that retaliation could include the FBI’s refusal to investigate death threats against a

federal agent and his wife). Second, Smith has also proffered evidence suggesting that Ivoc,

Rosario, Sophia, and Bumpers were persistently hostile towards her and that Ivoc and Bumpers

were involved in decisions to formally discipline her following her complaints regarding

Rosario’s conduct. A reasonable factfinder could conclude that these actions all pertained to the

same subject matter—retaliation against Smith for filing a sexual harassment complaint—and

that the combination of the ongoing failure to remedy Rosario’s conduct, the discipline, and the

continual antagonism suggested a “persistent, ongoing pattern,” as opposed to isolated incidents.

Mandel, 706 F.3d. at 157, 167.

A reasonable juror could also conclude that at least one act occurred within the statutory

period. Taking all inferences in favor of Smith, it appears that management did not act to

investigate Smith’s harassment claim or discipline Rosario until her third complaint in June

2018, a failure that would fall within the statutory period (after May 9, 2018). Moreover, Smith

also describes Ivoc treating her with disrespect, Sophia nitpicking her work, Sophia yelling at her

and making her perform duties outside of her job description, Ivoc calling her a liar, and

Bumpers suspending and then firing her, with all of these acts occurring after May 9, 2018. See

First Am. Compl. ¶¶ 84, 85, 86, 89, 90, 92. As such, the continuing violation doctrine is

satisfied, and the entire retaliatory hostile environment claim may be actionable.

2. Merits of the September 5, 2018 Termination Claim

To establish a prima facie case of retaliation, a plaintiff must show that: “(1) she engaged

in activity protected by Title VII; (2) the employer took an adverse employment action against

her; and (3) there was a causal connection between her participation in the protected activity and

the adverse employment action.” Moore v. City of Phila., 461 F.3d 331, 340–41 (3d Cir. 2006).

Because a termination clearly constitutes an adverse action, I primarily will focus on whether

Smith engaged in protected activity and causation.

Smith’s pleadings raise the inference that she engaged in protected activity. The Third

Circuit has held that formal and informal complaints of discrimination, which includes

harassment, constitute protected activities. See Abramson v. William Paterson Coll. of New

Jersey, 260 F.3d 265, 288 (3d Cir. 2001) (“[T]he complaints to [defendant], whether oral or

written, formal or informal, are sufficient to satisfy the first prong of the prima facie case,

provided the complaints expressed Abramson's opposition to a protected activity under Title

VII”). Smith has claimed that she filed three complaints regarding Rosario’s conduct with

Human Resources, which if true, would clearly qualify as protected activity.

With respect to the causal connection between participation in protected activity and

adverse action, the Third Circuit has also clarified that plaintiffs bringing retaliation claims have

a lesser burden at the prima facie stage of the case. See Carvalho-Grevious v. Delaware State

University, 851 F.3d 249, 258 (3d Cir. 2017). A plaintiff does not need to prove “but for”

causation at the prima facie stage, as such a standard would abrogate the McDonnell-Douglas

shifting burdens framework. Id. at 259–260. Rather, the question is whether the plaintiff has

“produced evidence from which a reasonable factfinder could conclude that her engagement in a

protected activity was the likely reason for the adverse employment action.” Id. at 261.

Plaintiffs may produce a wide array of evidence to demonstrate the causal link: an employer’s

inconsistent explanation, a pattern of antagonism, or temporal proximity unusually suggestive of

retaliatory motive. Id. at 260. Alternatively, the evidence may, when taken as a whole, suffice to

raise the inference. Id.

At this stage of the case, Smith’s evidence suggests a pattern of antagonism connected to

her protected complaint,5 which persisted even after Defendants fired Rosario. Smith has

claimed that Defendants repeatedly failed to take remedial action in response to her initial two

5 Defendants argue that “[t]o be sufficient in terms of causal connection, the temporal proximity must be “unusually

suggestive” of retaliatory motive.” See Defs. Mem. 23. However, as recent Third Circuit authority makes clear,

temporal proximity is only one evidentiary factor a court may consider. See Carvalho-Grevious, 851 F.3d at 260. A

pattern of antagonism may also raise the inference.

complaints, First Am. Compl. ¶ 77; that Ivoc’s demeanor towards her changed after she filed the

complaint, id. ¶¶ 62, 63; that Ivoc failed to intervene when Rosario and Sophia sought to

sabotage Smith’s work performance, id. ¶ 72; that Smith was suspended in March 2018 after

complaining about Rosario and Sophia, id. ¶ 74; that Sophia and Ivoc persisted in their

antagonism after Rosario was fired, id. ¶¶ 84, 85; that Defendant Ivoc called her a “liar,” First

Am. Compl. ¶ 89; and that Smith was suspended and then fired following an altercation with

Sophia, id. ¶¶ 90, 92. These incidents may not, individually, rise to actionable retaliation.

However, when viewed in the light most favorable to Smith, they raise the inference that Smith’s

protected activity was the likely reason for her firing. Defendant must now bear the burden of

production and offer an alternative explanation for her termination.

3. Merits of the Retaliatory Hostile Work Environment Claim

A retaliatory hostile work environment claim goes beyond discrete acts of retaliation and

is based on a contention that the employer permitted a hostile environment to develop as a result

of an employee’s opposition to an illegal practice or participation in a Title VII proceeding. The

law of retaliatory hostile work environments remains somewhat unsettled. The Third Circuit

first introduced this theory in Jensen, where it held that the plaintiff could prevail by showing

that the retaliatory conduct was “severe or pervasive enough to alter the conditions of [her]

employment and create an abusive working environment.” 435 F.3d 444, 451 (3d Cir. 2006)

(internal citations omitted). Thereafter, in Burlington Northern, the Supreme Court applied a

“material adversity” standard and directed courts to look to whether a challenged action “might

have dissuaded a reasonable worker from making or supporting a charge of discrimination.” 548

U.S. at 68 (internal citations omitted).

The Third Circuit returned to the subject of retaliation in Moore v. City of Phila., positing

that “[t]o establish a prima facie case of retaliation under Title VII, a plaintiff must tender

evidence that: (1) she engaged in activity protected by Title VII; (2) the employer took an

adverse employment action against her; and (3) there was a causal connection between her

participation in the protected activity and the adverse employment action.” 461 F.3d at 340–341.

In a discussion of Jensen, the Moore court reasoned that Jensen’s holding was contradicted by

the Supreme Court’s conclusion in Burlington Northern “that the anti-retaliation provision,

unlike the substantive provision, is not limited to discriminatory actions that affect the terms and

conditions of employment.” Id. at 341. Accordingly, the Moore court concluded that the proper

standard for evaluating a hostile environment claim was the “material adversity” standard. Id. at

341–342.

The state of the law has remained unclear following Moore. As the Third Circuit noted

in Komis, several courts of appeals have continued to apply a “severe or pervasive” standard to

retaliatory hostile work environment cases even after Burlington Northern. 918 F.3d at 299 n.9.

However, in Komis, the Third Circuit reiterated in 2019 that the “material adversity” standard

was proper in retaliatory hostile environment claims. Id. at 299. Conceptually, the “material

adversity” standard appears broader than the “severe or pervasive” standard insofar as it also

addresses retaliatory conduct that occurs outside of the workplace or does not directly impact

employment. Burlington Northern, 548 U.S. at 63. All the same, the Third Circuit has made

clear that the “material adversity” standard continues to “separate significant from trivial harms”

and “unquestionably leaves in place a plaintiff’s burden to show the allegedly hostile work

environment was motivated by retaliatory animus.” Komis, 918 F.3d at 299.6

6 As interpreted by the Third Circuit, the “material adversity” standard does not meaningfully diverge from the

“severe and pervasive” standard with respect to the degree of the harm required. In Komis, the plaintiff argued that

Based on this analysis, I believe that “material adversity” is the appropriate standard to

apply in retaliatory hostile work environment cases within the Third Circuit, and I will apply the

test articulated in Moore. In that case, the Third Circuit concluded that a reasonable worker

would be dissuaded from making or supporting a charge of discrimination in response to conduct

that included interference with his position, being told that other officers were “out to get him,”

false discipline, and another officer’s involvement with the plaintiff’s custody battle with the

mother of his child. 461 F.3d at 348. In this matter, a juror could similarly find that Defendants’

failure to respond to two sexual harassment complaints, unwarranted discipline, Sophia and

Rosario’s interference with Smith’s job performance, and the general antagonism towards Smith

would be sufficient to deter a reasonable worker from making a charge of discrimination. Smith

has also raised the inference that these actions were motivated by retaliatory animus, as Ivoc’s

antagonism arose only after Smith filed a complaint; the March 2018 discipline occurred close in

time to Smith’s attempt to follow up on her harassment claim; and Sophia specifically referenced

the complaint against Rosario as motivation for his actions. See First Am. Compl. ¶¶ 62, 74, 87.

D. Pennsylvania Human Relations Act Claims

Defendants also argue that Plaintiff’s PHRA claims are time-barred and lack the requisite

specificity to survive a motion to dismiss. See Defs. Mem. 24, 26. Defendants further claim that

Plaintiff’s aiding and abetting claim cannot survive if her other PHRA claims are dismissed. Id.

at 26. I agree.

Plaintiff’s PHRA claims are untimely. The Act provides that, “[a]ny complaint filed

pursuant to this section must be so filed within one hundred eighty days after the alleged act of

the court’s selection of the “severe and pervasive” standard for jury instruction in her retaliatory harassment claim

was error because it imposed a higher burden than the “material adversity” standard. 918 F.3d at 299. The Third

Circuit concluded that any error was harmless, thereby implying that as to the degree of the harm required for

plaintiff to prevail, there is little practical difference between the standards. Id.

discrimination, unless otherwise required by the Fair Housing Act.” 43 Pa. Cons. Stat. § 955(h).

Federal and state courts have interpreted this requirement strictly and have repeatedly required

injured persons to “avail themselves of the administrative process of the Commission or be

barred from the judicial remedies.” Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir.

1997) (citing Vincent v. Fuller Co., 532 Pa. 547, 616 (1992)). Smith filed with the Pennsylvania

Human Rights Commission on March 5, 2019. First Am. Compl. ¶ 24. The statutory window,

therefore, began on September 6, 2018. Because Smith was terminated on September 5, 2018

and does not allege any conduct within the PHRA statutory period, I will grant Defendants’

motion with respect to this claim.

Because there is no actionable discrimination under the PHRA in this matter, Smith’s

aiding and abetting count necessarily fails. The PHRA prohibits “any 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 …” 43 Pa.

Cons. Stat. § 955(e). The Third Circuit does not appear to have addressed this precise question,

but I am persuaded by the district court’s reasoning in Scott v. Sunoco Logistics Partners, 918

F.Supp.2d 344, 357 n.5 (E.D. Pa. 2013). There, the court noted that because the corporate

defendant was not liable for discrimination or retaliation, individual defendants could not be

liable under an aiding and abetting theory. Id. That logic applies squarely to this case.

E. Philadelphia Fair Practices Ordinance Claims

Defendants also argue that Plaintiff’s PFPO claims “should be dismissed because: (1)

Smith has invoked her rights under the PHRA, which precludes her PFPO claims; (2) the

corporate defendants, in that they are not located in Philadelphia, are not covered by the PFPO;

and (3) Smith’s PFPO claims fail for the reasons detailed at length.” Defs. Memo. 27. Once

again I agree and will therefore dismiss Smith’s PFPO claims pursuant to the plain meaning of

the statute and Smith’s failure to administratively exhaust her claims.

The ordinance provides that “[t]he Commission shall not accept a complaint from any

person who has filed a complaint with the Pennsylvania Human Relations Commission with

respect to the same grievance.” Phila. Code § 9-1112(4) (emphasis added). Additionally,

plaintiffs may only exercise a private right of action after invoking the Commission’s procedures

and receiving notice from the Commission. Id. § 9-1122. Smith has stated that she filed with the

Human Relations Commission on March 5, 2019, First Am. Compl. ¶ 24, which would bar her

PFPO claim. Smith has also not demonstrated that she properly invoked the Commission’s

procedures and received the requisite notice that she would need to pursue a PFPO claim before

this Court. Therefore, I will grant Defendants’ motion to dismiss with respect to these claims.

F. Intentional Infliction of Emotional Distress

Defendants contend that Smith’s IIED claim is subject to preemption under the PHRA.

See Defs. Mem. 32 n7. They also argue that Smith has failed to allege that Defendants engaged

in conduct that was extreme and outrageous. Id. at 31. I need not address Defendants’

preemption claim insofar as I find that Smith’s pleadings do not establish that the conduct of the

moving Defendants—who were one step removed—was extreme and outrageous.

To establish a claim for intentional infliction of emotional distress, “(1) the conduct [of

the defendant] must be extreme and outrageous; (2) it must be intentional or reckless; (3) it must

cause emotional distress; [and] (4) the distress must be severe.” Hoy v. Angelone, 691 A.2d 476,

482 (Pa. Super. Ct. 1997). The burden of demonstrating outrageous conduct is substantial;

plaintiffs must show that the actions have been “outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Restatement (Second) of Torts § 46 cmt. d (Am.

Law Inst. 1965). The Pennsylvania Supreme Court has also noted that the availability of

recovery under Section 46 of the Second Restatement is “highly circumscribed.” Kazatsky v.

King David Memorial Park, Inc., 515 Pa. 183, 190 (1987).

Taking all the evidence in favor of Smith, I cannot infer that Defendants’ conduct was

extreme and outrageous. The Pennsylvania Supreme Court has noted that defendants could

potentially be liable for IIED if they engaged in both sexual harassment and retaliation. See Hoy

v. Angelone,, 554 Pa. 134, 153–154 (1998); see also Bowersox v. P.H. Glatfelter Co., 677 F.

Supp. 307, 310 (M.D. Pa. 1988) (noting that IIED was plausible where plaintiff’s supervisor

sexually harassed her, withheld information from her that she needed to perform her job, and

forbade her from speaking with others in the office). Here, however, with the exception of

Rosario, Smith does not allege that Defendants engaged in sex-based harassment towards her.

Rather, Smith’s claims against Defendants center on their failure to remedy Rosario’s sexual

harassment and their retaliatory antagonism towards her. While this conduct may constitute

actionable discrimination and retaliation, I cannot presume that it would be viewed as “utterly

intolerable in a civilized community.” Restatement (Second) of Torts § 46 cmt. d (Am. Law

Inst. 1965). Moreover, Smith’s conclusory allegations that “[d]efendants intentionally and

recklessly harassed and inflicted emotional injury on Plaintiff by subjecting her to outrageous

treatment beyond all bounds of decency” are insufficient to overcome this burden. First Am.

Compl. ¶ 182.

G. Negligent Hiring/Negligent Supervision/Negligent Retention

Defendants primarily argue that Smith’ claim is preempted by the PHRA and that she

cannot show that Defendants had knowledge of Rosario’s propensities at the time of his hire.

See Defs. Mem. 32. Although Defendants’ reasoning is persuasive with respect to Plaintiff’s

negligent hiring claim, Smith’s negligent supervision/retention claim is legally sufficient to

survive a motion to dismiss.

Defendants contend that Smith’s tort claim is preempted by the PHRA, but their

interpretation of the statute’s exclusivity provisions is overbroad. The PHRA bars actions “based

on the same grievance,” which pertain to the forms of discrimination that are “declared unlawful

by section 5 of this Act.” 43 Pa. Cons. Stat. § 962(b). State courts have made clear that

plaintiffs may bring common law actions based on the same facts as their PHRA claims when the

action would serve a different purpose than the elimination of discrimination. See Schweitzer v.

Rockwell International, 586 A.2d 383, 391 (Pa. Super. Ct. 1990) (stating that “[n]othing in the

language of the Act itself or in the expressed legislative intent shows that the Legislature

intended to extinguish common law rights”). Smith’s claim here pertains to Defendants’

negligence, as opposed to their discrimination. Moreover, Smith’s negligence claim is not

inextricably bound up with her discrimination claim, as she could theoretically prevail on the

negligence claim even if she could not prove discrimination. Compare with Weirich v. Horst

Realty Corp. LLC, No. 07-871, 2007 U.S. Dist. LEXIS 50923, at *4 (E.D. Pa. Jul. 13, 2007)

(dismissing plaintiffs’ claim as preempted on the ground that plaintiff must prove discrimination

to prove the breach of contract claim).

However, Smith’s negligent hiring claim must be dismissed, as she has failed to plausibly

allege that Defendants had notice of Rosario’s harassing propensities at the time of his hire. A

plaintiff seeking recovery due to negligent hiring must show that (1) the employer knew or

should have known of the violent propensity of the employee and (2) such employment creates

a situation in which a third party may be harmed. Coath v. Jones, 419 A.2d 1249, 1250 (Pa.

Super. Ct. 1980) (citing Dempsey v. Walso Bureau Inc., 431 Pa. 562 (1968)). Smith has claimed

that Defendants hired Rosario in 2016, converted him to a full-time employee around March

2017, and that Rosario began to harass Smith in the spring of 2017. See First Am. Compl. ¶¶ 34,

36. She also offers the conclusory allegation that, “Defendant DORMAN knew, both during the

hiring process and throughout Defendant ROSARIO’s employment, that the aforementioned

individual had inappropriate or dangerous characteristics.” Id. ¶ 191. This evidence does not

raise a plausible inference that Defendants knew of Rosario’s harassing tendency at the time that

he was hired. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

By contrast, Smith has established an adequate factual basis with respect to her negligent

supervision and retention claims. A negligent supervision action “requires the four elements of

common law negligence, i.e., duty, breach, causation, and damages.” Belmont v. MB Inc.

Partners, Inc., 708 F.3d 470, 488 (3d Cir. 2013). The plaintiff must demonstrate a loss that

resulted from “(1) a failure to exercise ordinary care to prevent an intentional harm by an

employee acting outside the scope of his employment, (2) that is committed on the employer's

premises, (3) when the employer knows or has reason to know of the necessity and ability to

control the employee.” Id. at 487-488 (citing Dempsey v. Walso Bureau, Inc., 431 Pa. 562

(1968)).

Plaintiffs must further satisfy two foreseeability requirements. First, they must show that

the employer “knew or should have known of the necessity for exercising control of its

employee.” Id. at 491. This requirement arises from § 317 of the Restatement (Second) of

Torts. Id. at 491. Second, “the harm that the improperly supervised employee caused to the

third party must also have been reasonably foreseeable.” Id. at 491. This requirement arises

from Ҥ 213 of the Restatement (Second) of Agency, which requires that all of the elements of

the tort of negligence exist in order for liability for negligent supervision to attach.” Id. at 491.

By way of example, the Supreme Court of Pennsylvania applied these factors in its

examination of whether the leadership of a Catholic diocese could be held liable for child sex

abuses perpetrated by a priest. The court noted that

[W]e find that a school district or school administrative unit (school) has a duty not to

hire or retain employees that it knows or should know have a propensity for sexually

abusing students. Where the plaintiff can establish that the school knew or reasonably

should have known of such a propensity, the school will generally be liable for the

foreseeable sexual abuse of students by that employee. Liability based on negligent hiring

or retention is not limited to abuse that occurs during the school day. A school may be

liable for abuse of a student by a school employee outside of school hours where there is

a causal connection between the particular injury and the fact of employment. Also, a

school can be held liable for injuries suffered after it knew or should have known of the

employee's propensity.

Hutchison ex. rel Hutchison v. Luddy, 560 Pa. 51, 64 (1999).

The logic in Hutchison squarely applies to this case. Defendants had a duty not to retain

employees that they knew or should have known had a propensity for sexual harassment.

Defendants were informed of Rosario’s propensities in December 2017, when Smith filed a

report of sexual harassment. See First Am. Compl. ¶ 52. Defendants’ breached their duty to

Smith when they failed to undertake an investigation to remedy the past harassment and ensure

appropriate supervision of Rosario to deter him from engaging in further harm. The injuries that

Smith sustained were foreseeable; by virtue of Smith’s report, Defendants knew that they needed

to exercise control over Rosario. Moreover, the harm that Rosario perpetrated was also

foreseeable, as Defendants permitted Rosario to access Smith in the workspace even after she

reported him twice. Id. ¶ 58.

Based on these facts, Defendants may be liable for the harm that resulted after Smith’s

first report in December 2017 up until Rosario’s termination in June 2018.

H. Availability of Punitive Damages

Defendants note that Smith cannot receive punitive damages under the PHRA, see Defs.

Mem. 30, which is correct. See Hoy v. Angelone, 554 Pa. at 146. But Plaintiff is entitled to seek

punitive damages on her surviving state law negligence claim, although it may be difficult for

her to ultimately prevail. The Pennsylvania Supreme Court has noted that negligent supervision

actions under Section 317 of the Second Restatement can sustain an award of punitive damages

if the plaintiff can show “the conduct of the defendant[s] went well beyond negligence and into

the realm of the outrageous.” Hutchison ex rel Hutchison v. Luddy, 582 Pa. 114, 124 (2005).

Outrageous conduct is an act “done with a bad motive or with a reckless indifference to

the interests of others.” Focht v. Rabada, 268 A.2d 157 (Pa. Super. Ct. 1970). Moreover,

“[r]eckless indifference to the interests of others” has been interpreted to mean that the “actor

has intentionally done an act of an unreasonable character, in disregard of a risk known to him

or so obvious that he must be taken to have been aware of it, and so great as to make it highly

probable that harm will follow.” Evans v. Phila. Transportation Company, 418 Pa. 567, 574

(1965).

In Hutchison, the court also noted that, “[it] may be that, as a practical matter, it proves

more difficult to sustain a claim for punitive damages against the ‘master’ in the negligent

supervision context than it might be with other negligence-based torts, given that the more direct

harm (which, as here, may well involve an intentional tort) will usually have been inflicted

directly by the ‘servant.’” 582 Pa. at 126. Although the same practical considerations clearly

apply to this case, which will make it more difficult for Plaintiff to succeed on a punitive damage

claim, more evidence of the decisionmakers’ state of mind may emerge in discovery.

I. Defendants’ Motion to Strike

Rule 12(f) allows a court to strike any redundant, immaterial, impertinent, or scandalous

matter. Fed. R. Civ. P. 12(f). As stated previously, there is “general judicial agreement” that

these motions “should be denied unless the challenged allegations have no possible relation or

logical connection to the subject matter of the controversy.” 5C Arthur R. Miller, Mary Kay

Kane & A. Benjamin Spencer, Federal Practice and Procedure § 1382 (3d ed. 2020).

Defendants’ concerns include Smith’s contentions that “the discrimination and retaliation will

continue;” that she is an “independent contractor” and that “the Dorman Defendants engaged in a

pattern and practice of discrimination.” Defs. Mem. 34. These claims, as conclusory and vague

as they are, potentially relate to the extent of Defendants’ discriminatory practices as well as the

employee-employer relationship between Smith and Dorman. Such boilerplate assertions also

cannot reasonably be considered “scandalous” matter. I will therefore deny Defendants’ Motion

to Strike.

V. Conclusion

For the reasons set forth above, Defendant’ Motion to Dismiss Plaintiff’s First Amended

Complaint will be granted in part and denied in part. An appropriate order follows.

/s/ Gerald Austin McHugh

United States District Judge