Amy Jo Schaefer v. Shawnee Holding, Inc. d/b/a Shawnee Inn & Golf Resort

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JANE DOE 1, et al.,

Plaintiffs, CIVIL ACTION NO. 3:21-cv-01037

v. (SAPORITO, M.J.)

SHAWNEE HOLDING, INC. d/b/a

SHAWNEE INN & GOLF RESORT,

et al.,

Defendants.

MEMORANDUM

This action was commenced when the plaintiffs, Jane Doe 1 (“Doe

1”) and Jane Doe 2 (“Doe 2”), appearing through counsel, filed their

complaint on June 11, 2021. (Doc. 1.) The plaintiffs are a same-sex

married couple. In their complaint, they allege that Doe 1 was subjected

to hostile work environment sexual harassment over the course of several

years while she was employed at the Shawnee Inn & Golf Resort

(“Shawnee”) as a graphic designer and web administrator, mostly

involving her direct supervisor, Jeromy Wo. The plaintiffs further allege

that Doe 1 complained, on multiple occasions, to human resources and to

Shawnee’s general manager, but she was then subjected to retaliation.

Ultimately, she alleges that she was forced to resign as a result of the

hostile work environment sexual harassment and the retaliation.

The complaint is divided into seven counts. In Counts I, II, and III,

Doe 1 asserts federal claims against her former employer, Shawnee, for

hostile work environment sexual harassment, discriminatory discharge,

and retaliatory discharge, arising under Title VII of the Civil Rights Act

of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. In Counts IV and V, Doe 1

asserts state-law claims against her former supervisor, Wo, for hostile

work environment sexual harassment and retaliation on an aiding-and-

abetting or accomplice theory of liability, arising under the Pennsylvania

Human Rights Act (“PHRA”), 43 Pa. Cons. Stat. Ann. § 951 et seq.1 In

Count VI, Doe 1 asserts a state-law tort claim against Wo for intentional

infliction of emotional distress. Finally, in Count VII, Doe 2 asserts a

state-law tort claim against Wo for loss of consortium.

The case is now before us on two motions. The plaintiffs have moved

for leave to proceed anonymously in this action. (Doc. 3.) Meanwhile, the

1 We note that, although Title VII does not permit for individual

liability, the PHRA permits an individual supervisory employee to be

held liable for his own direct acts of discrimination or for his failure to

take action to prevent further discrimination by an employee under his

supervision. See Slater v. Susquehanna Cty., 613 F. Supp. 2d 653, 669–

70 (M.D. Pa. 2009).

defendants have moved for partial dismissal of the complaint and for a

more definite statement. (Doc. 11.) Both motions are fully briefed and

ripe for decision.

I. MOTION TO PROCEED ANONYMOUSLY

The plaintiffs filed their complaint under the pseudonyms “Jane

Doe 1” and “Jane Doe 2.” A few days after filing the complaint, they

moved for leave to proceed anonymously.

“[P]roceeding under a fictitious name is an unusual measure

reserved for exceptional cases.” Doe v. Ind. Black Expo, Inc., 923 F. Supp.

137, 139 (S.D. Ind. 1996). As the Third Circuit has observed:

One of the essential qualities of a Court of Justice is

that its proceedings should be public. Rule 10(a)

requires parties to a lawsuit to identify themselves in

their respective pleadings. Courts have explained that

Federal Rule of Civil Procedure 10(a) illustrates the

principle that judicial proceedings, civil as well as

criminal, are to be conducted in public. Identifying the

parties to the proceeding is an important dimension of

publicness. . . . A plaintiff’s use of a pseudonym runs

afoul of the public’s common law right of access to

judicial proceedings.

While not expressly permitted under Federal Rule of

Civil Procedure 10(a), in exceptional cases courts have

allowed a party to proceed anonymously. That a

plaintiff may suffer embarrassment or economic harm

is not enough. Instead, a plaintiff must show both (1) a

fear of severe harm, and (2) that the fear of severe harm

is reasonable. . . . When a litigant sufficiently alleges

that he or she has a reasonable fear of severe harm

from litigating without a pseudonym, courts of appeals

are in agreement that district courts should balance a

plaintiff’s interests and fear against the public’s strong

interest in an open litigation process.

Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011) (citations, internal

quotation marks, and brackets omitted).

In Megless, the Third Circuit set forth “a non-exhaustive list of

factors to be weighed both in favor of anonymity and also factors that

favor the traditional rule of openness.” Id. at 409. The factors in favor of

anonymity include:

(1) the extent to which the identity of the litigant has

been kept confidential; (2) the bases upon which

disclosure is feared or sought to be avoided, and the

substantiality of these bases; (3) the magnitude of the

public interest in maintaining the confidentiality of the

litigant’s identity; (4) whether, because of the purely

legal nature of the issues presented or otherwise, there

is an atypically weak public interest in knowing the

litigant’s identities; (5) the undesirability of an

outcome adverse to the pseudonymous party and

attributable to his refusal to pursue the case at the

price of being publicly identified; and (6) whether the

party seeking to sue pseudonymously has illegitimate

ulterior motives.

Id. (quoting another source). The factors militating against anonymity

include:

(1) the universal level of public interest in access to the

identities of litigants; (2) whether, because of the

subject matter of this litigation, the status of the

litigant as a public figure, or otherwise, there is a

particularly strong interest in knowing the litigant’s

identities, beyond the public’s interest which is

normally obtained; and (3) whether the opposition to

pseudonym by counsel, the public, or the press is

illegitimately motivated.

Id. (quoting another source). “The Megless factors require a fact-specific,

case-by-case analysis.” Doe v. Coll. of N.J., 997 F.3d 489, 495 (3d Cir.

2021).

Applying these factors to the instant case, we conclude that the

motion should be denied, as the balance of factors does not favor

anonymity.

First, the plaintiffs have kept the facts and nature of this case and

their claims to themselves, including in particular Doe 1’s mental health

status and related treatment. Doe 1 necessarily disclosed her identity

and the facts underlying her employment claims to the Pennsylvania

Human Rights Commission for investigation of her administrative

complaint—a mandatory prerequisite to litigation under Title VII and

the PHRA—but that limited disclosure for non-public investigatory

proceedings is not inconsistent with maintaining confidentiality. Cf. Holt

v. Pennsylvania, Civil Action No. 10-5510, 2014 WL 2880376, at *16 (E.D.

Pa. June 25, 2014) (characterizing PHRC complaint as confidential and

non-public information). The defendants direct our attention to news

articles regarding this lawsuit, but those stories appear to be gleaned

from the public filings in this litigation, which do not reveal the plaintiffs’

identities. This factor weighs in favor of anonymity.

Second, the plaintiffs state that they fear potential physical

violence or other backlash that they might experience from unknown

persons if their names are attached to publicly available court records

highlighting their homosexuality, and that they fear the possible stigma

associated with being identified as homosexual or as an individual

suffering from a mental illness, particularly in the context of seeking

future employment opportunities. These generalized fears are entirely

speculative—the plaintiffs have articulated no specific threats or any

particular basis for their concerns. With respect to the stigma of

homosexuality, the plaintiffs’ concern further appears to be overstated

based on their otherwise uninhibited openness about their same-sex

marital status. As the defendants note, the plaintiffs are legally married,

they openly disclose their marital status on social media, and they are

the joint owners of record of their marital home. With respect to the

stigma of mental illness, we find nothing in the allegations of the

complaint to distinguish the emotional and mental harm suffered by Doe

1 in this case from that involved in a typical hostile workplace sexual

harassment case. This factor weighs against anonymity.

Third, there is minimal public interest in maintaining the

confidentiality of the plaintiffs’ names. The plaintiffs argue that a ruling

by this court denying their motion may deter other persons suffering from

mental illness or experiencing harassment based on sexual orientation

from suing to vindicate their rights. But, again, we see little to

distinguish the facts alleged here from the typical hostile workplace

sexual harassment case, involving emotional and mental injury as a

matter of course. Moreover, the plaintiffs are not closeted homosexuals

forced to choose between vindicating their rights or being unwillingly

outed, but an openly gay married couple contending with workplace

sexual harassment and its collateral effects in a fashion typical to these

cases, regardless of the employee’s sexual orientation. This factor weighs

against anonymity.

Fourth, the claims here are not purely legal claims, and thus the

public’s interest cannot be said to be “atypically weak.” Across the board,

the plaintiffs’ various claims are all fact-intensive. This factor weighs

against anonymity.

Fifth, the plaintiffs suggest that denial of this motion might cause

them to abandon this lawsuit, sacrificing potentially valid claims to

preserve their anonymity. While this outcome, particularly in this

context of enforcing federal and state anti-discrimination laws, would be

undesirable to the public interest, the plaintiffs’ stated intention on this

point is far from unequivocal. This factor weighs in favor of anonymity,

but not strongly.

Sixth, there is no evidence or allegation that the plaintiffs have an

illegal or ulterior motive for pursuing their claims against the defendants

anonymously. This factor weighs in favor of anonymity.

Turning then to the factors militating against anonymity, first “we

must acknowledge the thumb on the scale that is the universal interest

in favor of open judicial proceedings.” Megless, 654 F.3d at 411. None of

the parties to this case is a public figure, and the subject matter of this

case does not implicate any stronger public interest beyond that which

normally obtains in a civil action, but we take note of the defendant

employer’s high profile—locally at least—as a large recreational and

hospitality business. Finally, there is no evidence or allegation to suggest

that the defendants oppose anonymity for illegal or ulterior reasons.

Accordingly, finding the balance of Megless factors weighs against

anonymity, the motion to proceed anonymously will be denied.

II. MOTION FOR PARTIAL DISMISSAL

The defendants have moved to dismiss Counts VI and VII of the

complaint for failure to state a claim upon which relief can be granted,

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Count

VI is Doe 1’s intentional infliction of emotional distress (“IIED”) claim;

Count VII is Doe 2’s loss of consortium claim, which is derivative of Doe

1’s IIED claim.

For a plaintiff to prevail on an IIED claim, the conduct must (1) be

intentional or reckless; (2) be extreme and outrageous; and (3) cause

severe emotional distress. Wisniewski v. Johns-Manville Corp., 812 F.2d

81, 85 (3d Cir. 1987). “[A]s a general rule, sexual harassment alone does

not rise to the level of outrageousness necessary to make out a cause of

action for intentional infliction of emotional distress.” Andrews v. City of

Philadelphia, 895 F.2d 1469, 1487 (3d Cir. 1990). But “courts applying

Pennsylvania law have found conduct outrageous in the employment

context . . . where an employer engaged in both sexual harassment and

other retaliatory behavior against an employee.” Id. (emphasis added).

Here, the plaintiffs have alleged both sexual harassment and

subsequent retaliation. They point to a prior decision of this court,

Bowersox v. P.H. Glatfelter Co., 677 F. Supp. 307 (M.D. Pa. 1988), in

which we found similar allegations sufficient to state a claim for IIED.

We find little to distinguish the facts alleged in this case from those

alleged in Bowersox—at least, none that are material at this, the

pleadings stage.

The defendants argue that Andrews, Bowersox, and other decisions

applying Pennsylvania law in this context suggest a narrower rule. They

point to a subsequent comment by the Andrews court that “[t]he extra

factor that is generally required is retaliation for turning down sexual

propositions.” Andrews, 895 F.2d at 1487 (emphasis added). Based on

this, the defendants argue that the only retaliation sufficient to support

a workplace IIED claim is retaliation for the rejection of sexual advances.

But this strained reading of Andrews is simply too narrow; the case law

does not restrict the retaliatory conduct only to retaliation for refusing

direct sexual propositions. See, e.g., Regan v. Twp. of Lower Merion, 36 F.

Supp. 2d 245, 251 (E.D. Pa. 1999) (declining to dismiss IIED claim

alleging retaliation “for complaining about sexual harassment”);

McLaughlin v. Rose Tree Media Sch. Dist., 1 F. Supp. 2d 476, 482–83

(E.D. Pa. 1998) (noting that “case law does not restrict the retaliatory

conduct ‘only to retaliation for refusing direct sexual propositions’”).

“Although that particular brand of retaliation may be the ‘extra factor

that is generally required,” it is not “the only ‘extra factor’ that will

suffice.” Solomon v. City of Philadelphia, Civ. A. No. 94-2427, 1996 WL

20651, at *3 (E.D. Pa. Jan. 16, 1996).

Notwithstanding the absence of a direct request or demand for a

sexual quid pro quo in this case, we find the allegations of harassment

and retaliation here sufficient to fit squarely within the scope of

actionable conduct described in Bowersox:

That a supervisor would subject his female employee to

highly offensive speech and conduct in a close working

environment and then, as a result of her negative

reaction to that conduct, make the employee’s job

impossible to perform could in the court’s opinion lead

an average member of the community to exclaim,

“Outrageous!”

Bowersox, 677 F. Supp. at 311–12.

The defendants’ request for dismissal of Doe 2’s loss-of-consortium

claim was based solely on the fact that this claim is derivative of Doe 1’s

IIED claim. Because we have found a plausible IIED claim to have been

stated and rejected the defendants’ request to dismiss that claim, the

defendants’ corresponding request for dismissal of the derivative loss-of-

consortium claim must be rejected as well.

Accordingly, the motion for partial dismissal will be denied.

III. MOTION FOR A MORE DEFINITE STATEMENT

The defendants have moved for a more definite statement with

respect to the plaintiffs’ Title VII and PHRA claims, pursuant to Rule

12(e) of the Federal Rules of Civil Procedure. In particular, they note that

the complaint alleges only a general timeframe for Doe 1’s hostile work

environment sexual harassment and retaliation claims, which precludes

them from seeking dismissal on statute-of-limitations grounds at this,

the pleadings stage.

As this court has previously stated:

Rule 12(e) of the Federal Rules of Civil Procedure

allows a party to move for a more definite statement of

a pleading “which is so vague or ambiguous that the

party cannot reasonably prepare a response.” Fed. R.

Civ. P. 12(e). Like Rule 12(b)(6), Rule 12(e) must be

read in conjunction with Rule 8, which requires only a

short and plain statement of the claim showing that the

pleader is entitled to relief. Fed. R. Civ. P. 8. Even after

the Supreme Court’s ruling in Ashcroft v. Iqbal, 556

U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009),

courts have held that “[t]he class of pleadings that are

appropriate subjects for a motion under Rule 12(e) is

quite small—the pleading must be sufficiently

unintelligible for the court to be able to make out one

or more potentially viable legal theories on which the

claimant might proceed. Lapcevic v. Strive Enterprises,

Inc., No. 2:09-cv-564, 2010 WL 1816752, at *7 (W.D.

Pa. Apr. 8, 2010) (quoting Sun Co. v. Badger Design &

Constructors, 939 F. Supp. 365, 368 (E.D. Pa. 1996)).

Granting a Rule 12(e) motion is appropriate only when

the pleading is “so vague or ambiguous that the

opposing party cannot respond, even with a simple

denial, in good faith, without prejudice to itself.” Sun

Co., 939 F. Supp. at 368.

Mushi v. LJ Ross Assocs., Inc., Civil Action No. 3:21-cv-01300, 2021 WL

4803781, at *1 (M.D. Pa. Oct. 14, 2021); see also Schaedler v. Reading

Eagle Publ’n, Inc., 370 F.2d 795, 797–98 (3d Cir. 1967). “The basis for

granting such a motion is unintelligibility, not lack of detail.” Cobb v. Nye,

No. 4:14-cv-0865, 2014 WL 7067578, at *5 (M.D. Pa. Dec. 12, 2014)

(quoting Wood & Locker, Inc. v. Doran & Assocs., 708 F. Supp. 684, 691

(W.D. Pa. 1989)) (emphasis added). Indeed, as this court has previously

recognized in virtually identical circumstances: “A motion for a more

definite statement is not a substitute for the discovery process. . . . The

specific information which the defendant seeks in this case, namely dates

of violations, can be obtained through discovery.” Wheeler v. U.S. Postal

Serv., 120 F.R.D. 487, 488 (M.D. Pa. 1987).

Accordingly, the motion for a more definite statement will be

denied.

IV. CONCLUSION

For the foregoing reasons, the plaintiffs’ motion for leave to proceed

anonymously (Doc. 3) and the defendants’ motion for partial dismissal

and for a more definite statement (Doc. 11) will both be denied. The

plaintiff will be directed to file an amended complaint within thirty days.

An appropriate order follows.

Dated: March 15, 2022 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge