Doe v. Schuylkill County Courthouse

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JANE DOE, et al., : Civil No. 3:21-CV-477

:

Plaintiffs, :

:

v. :

: (Magistrate Judge Carlson)

SCHUYLKILL COUNTY :

COURTHOUSE, et al., :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction

This case involves allegations of abhorrent workplace misconduct at the

Schuylkill County Courthouse involving alleged sexual harassment, assault, and

predation coupled with assertions of official indifference to the plight of the alleged

victims of this workplace violence. The plaintiffs, four Jane Doe employees of

Schuylkill County, filed this action against the County and several individual

defendants. Their claims stem from the alleged sexual abuse and harassment

perpetrated by County Commissioner George Halcovage over a period of several

years while the plaintiffs were employed by the County. The plaintiffs assert that the

County, as well as the individual defendants, knew of the sexual abuse and

harassment and did nothing to stop it. Instead, the plaintiffs contend that these

defendants retaliated against them for reporting the sexual abuse and harassment.

Pending before the court is a motion to dismiss filed by two of these

defendants, Gary Bender, the County Administrator, and Schuylkill County.1 (Doc.

71). With respect to Defendant Bender, the plaintiffs allege that he discriminated

and retaliated against them, and that he aided and abetted others’ discriminatory

conduct in violation of the Pennsylvania Human Relations Act (“PHRA”). They also

assert that Bender violated their rights under the Equal Protection Clause of the

Fourteenth Amendment by subjecting them to disparate treatment and a hostile work

environment based upon their sex. Finally, the plaintiffs assert a claim against

Bender for First Amendment retaliation, alleging that they were punished for

reporting wrongdoing by Commissioner Halcovage. As to the County, the plaintiffs

assert claims under Title VII of the Civil Rights Act for discrimination, retaliation,

and creating a hostile work environment because of their sex, and assert similar

claims under the PHRA. The plaintiffs also bring claims under the Equal Protection

Clause for disparate treatment and creating a hostile work environment. Finally, the

complaint asserts a First Amendment retaliation claim against the County.

1 The defendants have filed five separate motions to dismiss, which will be addressed

in separate memorandum opinions.

In their motion to dismiss, several of the above-mentioned claims are not

contested by these defendants at this stage. Thus, in their motion, the defendants do

not challenge the following claims: the Title VII and PHRA claims against the

County (Counts I-III, V-VII); the claim for aiding and abetting under the PHRA

against Bender (Count VII); and the claim for First Amendment retaliation against

Bender and the County (Count XIII).23 With respect to the PHRA and Equal

Protection claims against Bender, he contends that the complaint is devoid of any

allegations that he subjected the plaintiffs to discrimination, disparate treatment, or

a hostile work environment, or that he retaliated against the plaintiffs for speaking

out about discriminatory conduct. Further, the County argues that the plaintiffs have

failed to state a Monell4 claim against it. These defendants also challenge the request

for punitive and liquidated damages. Finally, the defendants assert that the plaintiffs

should not be permitted to proceed under their “Jane Doe” pseudonyms.

2 Count X was misnumbered as Count XIII. Thus, for ease of reference, we will refer

to the First Amendment retaliation claim as Count XIII.

3 The defendants challenge the First Amendment retaliation claim in their reply brief,

noting that they join Defendant Halcovage’s brief with respect to this claim. (Doc.

93). However, it is well settled that these defendants cannot belatedly present new

arguments in a reply brief that were not addressed in its opening brief or in response

to the plaintiffs’ opposition brief. See Bell v. Lackawanna County, 892 F.Supp.2d

647, 688 n.41 (M.D. Pa. 2012) (“A reply brief is not the appropriate forum in which

to raise new issues and the court need not address issues raised for the first time

therein”). Therefore, consideration of this tardy argument must await another day.

4 Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978).

This motion is fully briefed and is ripe for resolution. (Docs. 83, 88). For the

reasons that follow, we will grant the motion as to the discrimination claim brought

under the PHRA against Defendant Bender, as well as the claim for punitive

damages against Bender under the PHRA, but we will deny the motion in all other

respects.

II. Background

The factual background of this case is taken from the factual allegations set

forth in the plaintiff’s second amended complaint (Doc. 63), which we must accept

as true for purposes of this motion to dismiss.

George Halcovage was elected as a Commissioner of Schuylkill County in

2012. (Doc. 63, ¶ 45). At this time, Plaintiffs Jane Doe 3 and Jane Doe 4 were

employed with the County as the Tax Claim Director and Clerk Typist One,

respectively. (Id., ¶¶ 43-44). The complaint alleges that upon the start of his term as

County Commissioner, Halcovage frequently visited the Tax Claims Office and

subjected the female employees to unwelcomed sexual harassment. (Id., ¶ 47). This

harassment, which included discriminatory sexist and inappropriate comments, was

sometimes directed at and witnessed by Doe 3 and Doe 4, and caused them to feel

extremely uncomfortable, humiliated, and distressed. (Id., ¶¶ 47-48). The plaintiffs

allege that Glenn Roth, the First Assistant County Solicitor and Risk Manager, and

Gary Bender, the County Administrator, witnessed this behavior by Halcovage but

did nothing to stop it. (Id., ¶ 49).

Plaintiff Jane Doe 1 was hired by the County in February of 2014. (Id., ¶ 51).

According to the complaint, Halcovage visited Doe 1’s workspace often, which

caused her coworkers to make comments about Doe 1 talking with Halcovage who

was “a sucker for pretty girls.” (Id., ¶¶ 52-53). Halcovage began making unwanted

comments about Doe 1’s physical appearance, which increased in frequency and

intensity throughout Doe 1’s first year with the County. (Id., ¶¶ 55-56). These

comments about Doe 1’s physical appearance eventually morphed into more forceful

sexual advances, with Halcovage grabbing Doe 1 and kissing her after a fundraiser

that Doe 1 attended in late 2014 or early 2015. (Id., ¶¶ 57-61). After this incident,

Halcovage allegedly made comments to Doe 1 which she believed implied that her

job was contingent on submitting to Halcovage’s sexual advances. (Id., ¶ 64).

Around this same time, Plaintiff Jane Doe 2 was hired by the County, and the

complaint alleges that she was almost immediately subject to unwanted sexual

comments from Halcovage. (Id., ¶¶ 65-66). It is alleged that these sexually charged

comments caused Doe 2 issues with her female coworkers, who either ignored her

or gave her one-word answers, which she believed to be due to her coworkers’

incorrect impression that she was in a relationship with Halcovage. (Id., ¶¶ 68-72).

The complaint further alleges that the plaintiffs witnessed Halcovage making

inappropriate and sexist comments about other female coworkers. (Id., ¶¶ 76-77).

According to the plaintiffs, Defendants Roth and Bender were present for some of

these comments but did nothing to stop Halcovage or inform him that his behavior

was inappropriate. (Id., ¶¶ 78-79). This led the plaintiffs to believe that any efforts

they made to report Halcovage’s conduct would be futile. (Id., ¶ 81).

Halcovage’s alleged sexual harassment of the Doe plaintiffs continued and

intensified. In 2015, Halcovage made a comment to Doe 2’s husband at a fundraising

event about “using” his wife, a comment which allegedly insinuated that Halcovage

and Doe 2 had sexual intercourse. (Id., ¶¶ 83-86). The complaint asserts that

Defendant Roth was present for this comment and later mentioned that the comment

made him uncomfortable, remarking that Halcovage “didn’t have to say it that way.”

(Id., ¶¶ 87-89). However, Roth did not report Halcovage’s behavior to HR. (Id., ¶

90).

Doe 1 and Doe 2 also attended a fundraiser in March of 2015 at Halcovage’s

request. (Id., ¶ 91). According to the complaint, Halcovage insisted he drive Doe 1

home after the event. (Id., ¶ 92). Upon arriving at Doe 1’s home, Halcovage was

verbally and physically affectionate with her, kissed her, and ultimately unzipped

his pants and exposed his genitals to her. (Id. ¶¶ 94-95). Doe 1 took this to mean that

Halcovage wanted her to perform oral sex on him, which made her feel overwhelmed

and uncomfortable. (Id., ¶¶ 97-98). Due to his position of authority over her, Doe 1

ultimately performed oral sex on Halcovage. (Id., ¶ 97). The complaint alleges that

immediately following this incident with Doe 1, Halcovage called Doe 2 demanding

to know where she was and who she was with. (Id., ¶ 98).

The complaint alleges another instance of sexual assault by Halcovage in

2018, where Halcovage took Doe 1 into the tax filing room inside the courthouse,

forcibly pushed her head down, exposed his genitals, and forced her to perform oral

sex on him. (Id., ¶¶ 109-12). While Doe 1 and Doe 2 consistently attempted to rebuff

Halcovage’s sexual advances, it is alleged that Halcovage also inserted himself into

their personal and family lives, particularly when they refused his sexual advances.

(Id., ¶ 101). The complaint asserts that Halcovage frequently made appearances at

Doe 1’s home late at night with alcohol or early in the morning, causing her to be

late for work. (Id., ¶ 104). Moreover, when Doe 1 rebuffed Halcovage’s advances,

Halcovage’s harassment of Doe 2 intensified. (Id., ¶ 119). The plaintiffs allege that

over time, Halcovage’s requests for oral sex turned into requests for sexual

intercourse. (Id., ¶ 116).

In 2019, Doe 3 became Doe 1’s direct supervisor. (Id., ¶ 142). In July and

November of 2019, Doe 3 twice reported incidents of Halcovage’s sexual

harassment to Defendant Roth. (Id., ¶¶ 145-47). According to the complaint, Roth

did not document the incidents, make any inquiries, or report the incidents to HR.

(Id., ¶ 148). Around this same time, Roth allegedly knew that Halcovage was

contacting Doe 1 and Doe 2 outside of work hours but did not report Halcovage’s

behavior to anyone. (Id., ¶¶ 154-55). In 2020, Doe 3 pleaded with Roth to intervene

with respect to Halcovage’s harassment, and Roth told her to take her complaints to

HR. (Id., ¶¶ 156-57).

Thus, in May of 2020, Doe 1 sent Doe 3 a formal email reporting Halcovage’s

sexual harassment and sexual assault. (Id., ¶ 159). This email was promptly

forwarded to HR, after which HR conducted formal interviews of the plaintiffs. (Id.,

¶ 160-61). One month later, Halcovage stepped down as Chief Commissioner but

remained in the Commissioner position. (Id., ¶ 162). At this time, the County put out

a press release stating that an investigation revealed that Halcovage had violated the

County’s Sexual Harassment Policy, the Conduct and Disciplinary Action Policy,

and the Physical and Verbal Abuse Policy. (Id., ¶ 164). This press release also stated

that Halcovage could not be removed from his position as Commissioner absent a

criminal conviction or impeachment. (Id.)

Following the Doe Plaintiffs’ reports of sexual misconduct, they allege that

they were subject to retaliation by Halcovage, the County, and the other individual

defendants. On this score, it is alleged that Halcovage was not removed from the

plaintiffs’ work environment and was still working at the courthouse. (Id., ¶ 167).

The County also permitted an employee of Doe 3 and Doe 4 to be relocated without

consulting Doe 3 or Doe 4, which impacted their job performance and was believed

to be done in retaliation for their reports against Halcovage. (Id., ¶¶ 173-74).

Additionally, while Halcovage was informed there was a specific place he could

park, Defendant Bender allegedly authorized him to park in the same parking lot as

Doe 3 and Doe 4. (Id., ¶ 177). Doe 3 and Doe 4 were also required to conduct an

assessment appeal hearing in the Commissioner’s suite, although they had requested

not to be required to work in that location. (Id., ¶¶ 178-79). Thus, Doe 3 encountered

Halcovage in August of 2020, which caused her emotional distress. (Id., ¶ 180-81).

The plaintiffs ultimately filed complaints with the Equal Employment

Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations

Commission (“PHRC”) in August of 2020. (Id., ¶ 8). In these complaints, they

alleged violations of Title VII, the PHRA, Pennsylvania common law, and Section

1983. (Id.)5

Following the filing of the EEOC complaints, Doe 3 encountered Halcovage

several times, after which she reported her concerns to Doreen Kutzler, an HR

representative for the County. (Id., ¶¶ 184-86). The complaint alleges that Doe 3

contact Kutzler twice regarding her concerns, but Kutzler never responded to her

email or took any action to prevent the plaintiffs from further encounters with

Halcovage. (Id., ¶¶ 186-87). Doe 3 also emailed Kutzler to set up specific times for

5 These complaints were supplemented on March 16, 2021. (Doc. 63, ¶ 9). The

plaintiffs received their Right to Sue letters on April 8, 2021 and October 27, 2021.

(Id., ¶¶ 11, 13).

she and Doe 4 to come to the office so as not to encounter Halcovage, and Kutzler

again ignored her emails. (Id., ¶¶ 188-89). Moreover, while Doe 1 and Doe 2 were

working from home, they allege that they were not given the supplies they needed,

which hindered them from performing their job duties. (Id., ¶ 192). Additionally, in

October 2020, Kutzler and Bender engaged in contract negotiations with one of Doe

3 and Doe 4’s employees without consulting them, which led to more responsibilities

for Doe 3 and Doe 4. (Id., ¶¶ 196-200).

In October of 2020, Doe 1 again requested that she be given permission to

continue to work from home and provided with the necessary supplies to do so. (Id.,

¶ 204). This request was ultimately denied, and in November of 2020, Doe 1 and

Doe 2 were informed that they would be required to work in the “410 building.” (Id.,

¶ 206). The plaintiffs brought concerns to the County regarding this work

arrangement, indicating that Halcovage could access the building and that there was

no parking close by. (Id., ¶ 208). The County had also arranged for Defendant

Bender to provide Doe 1 and Doe 2 with keys to their offices and to answer any

questions they had, but this arrangement was changed when the plaintiffs informed

the County that they did not want to have contact with Bender. (Id., ¶¶ 210-11). At

or around this time, Doe 1 and Doe 2 requested to use paid time off, which Kutzler

denied, informing them they could only use unpaid leave. (Id., ¶¶ 216-17).

Additionally, Doe 3 emailed Kutzler about the state and cleanliness of the new office

space for Doe 1 and Doe 2, concerns that were said to have been remedied but were

not. (Id., ¶¶ 219-223).

The harassment and retaliation of the plaintiffs allegedly continued into 2021.

Thus, on or about January 13, 2021, Doe 2 alleges that Halcovage was following

her, and she reported it to both Kutzler and the police. (Id., ¶ 224). Two days later,

Doe 3 and Doe 4 learned that Halcovage had been assigned a parking spot in the

same lot they parked in and that he had access to where they worked in the

courthouse. (Id., ¶ 226). Upon learning this, Doe 3 and Doe 4 opted to work from

home that day, and they were later reprimanded for this decision by Bender. (Id., ¶

227). They were further reprimanded by Bender and Zula for allowing their

employees to work from home. (Id., ¶¶ 229-30). Thus, in February of 2021, Zula

denied Doe 1’s request to work from home, even though Doe 3 had approved it as

her supervisor. (Id., ¶¶ 231-34). Additionally in February 2021, Kutzler permitted

Bender and Halcovage to sign up for the same sexual harassment training that Doe

3 and Doe 4 had signed up for, requiring them to adjust their schedule to go to a

different training. (Id., ¶¶ 235-36). At or around this time, Doe 2 had requested to

work from home, and Zula denied her request. (Id., ¶¶ 237-38). Additionally, Doe 1

and Doe 2 were not assigned parking spaces for the “410 building” and had been

threatened that their vehicles would be towed. (Id., ¶ 242).

Thereafter, on March 18, 2021, just two days after the initial complaint was

filed in this case, Doe 3 and Doe 4 received notice that their office was being

restructured, which resulted in a demotion and a decrease in their salaries. (Id., ¶

243). The restructuring of the office was voted on by Halcovage despite others

requesting that he abstain from the vote. (Id.) Moreover, the restructuring resulted

in Doe 1 and Doe 2 reporting directly to Defendant Bender. (Id., ¶ 244). In April

2021, Doe 3 and Doe 4 were issued written warnings for unprofessional and

inappropriate conduct. (Id., ¶ 245; Doc. 63-1, Ex. K, at 44-45). Then in May 2021,

Doe 3 was suspended without pay, which was signed off by Bender. (Doc. 63, ¶ 246;

Doc. 63-1, Ex. L, at 50). In July of 2021, Doe 2 was issued a written reprimand for

failing to report an absence from work. (Doc. 63, ¶ 247; Doc. 63-1, Ex. M, at 56).

Ultimately, in September of 2021, Doe 3 and Doe 4 were suspended indefinitely

without pay. (Doc. 63, ¶ 258; Doc. 63-1, Ex. N, at 58).

As we have noted, the initial complaint in this matter was filed on March 18,

2021. (Doc. 1). The plaintiffs filed an amended complaint on April 16, 2021, and a

second amended complaint was filed on October 29, 2021, which is now the

operative pleading in this case. (Doc. 63). With respect to Defendant Bender and the

County, the amended complaint asserts the following claims by the Doe Plaintiffs:

discrimination, retaliation and hostile work environment claims under Title VII

against the County (Counts I-III); discrimination, retaliation, and aiding and abetting

discrimination and retaliation under the PHRA (Counts V-VII); Fourteenth

Amendment Equal Protection violations based on disparate treatment and hostile

work environment (Counts VIII-IX); and retaliation in violation of the First

Amendment (Count XIII).

Bender and the County have now filed a motion to dismiss, arguing that the

plaintiffs have failed to state a claim against them. As we will discuss below, with

the exception of the discrimination claim under the PHRA against Bender, we find

that the plaintiffs have sufficiently stated causes of action against the County and

Bender at this stage. Accordingly, the motion will be granted with respect to the

PHRA discrimination claim against Bender, as well as the claim for punitive

damages against Bender under the PHRA, but will be denied in all other respects.

III. Discussion

A. Motion to Dismiss – Standard of Review

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal

Rules of Civil Procedure only if the complaint fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for

the legal sufficiency of a complaint, the United States Court of Appeals for the Third

Circuit has aptly noted the evolving standards governing pleading practice in federal

court, stating that:

Standards of pleading have been in the forefront of jurisprudence in

recent years. Beginning with the Supreme Court’s opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our

opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.

2008)], and culminating recently with the Supreme Court’s decision in

Ashcroft v. Iqbal, BU.S.B, 129 S. Ct. 1937 (2009), pleading standards

have seemingly shifted 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.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief

may be granted, the court must accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom are to be construed in the light

most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, Inc.,

20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s

bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court

need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not

alleged.” Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a

plaintiff must provide some factual grounds for relief which “requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right

to relief above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has

underscored that a trial court must assess whether a complaint states facts upon

which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,

556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to

dismiss, a court should “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” Id., at 679.

According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather,

in conducting a review of the adequacy of a complaint, the Supreme Court has

advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than

conclusions are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.

Id., at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain

more than mere legal labels and conclusions; it must recite factual allegations

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere

speculation. As the United States Court of Appeals for the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to

state a claim, district courts should conduct a two-part analysis. First,

the factual and legal elements of a claim should be separated. The

District Court must accept all of the complaint’s well-pleaded facts as

true, but may disregard any legal conclusions. Second, a District Court

must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a “plausible claim for relief.” In

other words, a complaint must do more than allege the plaintiff’s

entitlement to relief. A complaint has to “show” such an entitlement

with its facts.

Fowler, 578 F.3d at 210-11.

As the Court of Appeals has observed:

The Supreme Court in Twombly set forth the “plausibility” standard for

overcoming a motion to dismiss and refined this approach in Iqbal. The

plausibility standard requires the complaint to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard

when the factual pleadings “allow[ ] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal,

129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).

This standard requires showing “more than a sheer possibility that a

defendant has acted unlawfully.” Id. A complaint which pleads facts

“merely consistent with” a defendant’s liability, [ ] “stops short of the

line between possibility and plausibility of ‘entitlement of relief.’ ”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied,

132 S. Ct. 1861 (2012).

In practice, consideration of the legal sufficiency of a complaint entails a

three-step analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead

to state a claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should

identify allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Id., at 1950. Finally, “where

there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an

entitlement for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting

Iqbal, 129 S. Ct. at 1950).

In considering a motion to dismiss, the court generally relies on the complaint,

attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,

268 (3d Cir. 2007). The court may also consider “undisputedly authentic

document[s] that a defendant attached as an exhibit to a motion to dismiss if the

plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading, may be

considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002)

(holding that “[a]lthough a district court may not consider matters extraneous to the

pleadings, a document integral to or explicitly relied upon in the complaint may be

considered without converting the motion to dismiss in one for summary

judgment”). However, the court may not rely on other parts of the record in

determining a motion to dismiss, or when determining whether a proposed amended

complaint is futile because it fails to state a claim upon which relief may be granted.

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

B. The Defendant’s Motion Should Be Granted in Part and Denied in

Part.

As we have noted, several claims brought against these defendants are not

contested in the instant motion to dismiss. Thus, the defendants do not contest: the

Title VII and PHRA claims against the County (Counts I-III, V-VII); the claim for

aiding and abetting under the PHRA against Bender (Count VII); and the claim for

First Amendment retaliation against Bender and the County (Count XIII). We will

proceed with the litigation of these claims against the County and Bender.

Accordingly, we will address the remaining claims against these defendants that are

challenged in this motion to dismiss.

1. Plaintiffs’ Use of Pseudonyms

The defendants first contend that the Doe plaintiffs are improperly proceeding

under pseudonyms. However, for the reasons set forth below, we will decline at this

stage to prohibit the plaintiffs from proceeding under their Jane Doe pseudonyms.

Ordinarily, “[a] plaintiff’s use of a pseudonym ‘runs afoul of the public’s

common law right of access to judicial proceedings.’” Doe v. Megless, 654 F.3d

404, 408 (3d Cir. 2011) (quoting Does I Thru XXIII v. Advanced Textile Corp., 214

F.3d 1058, 1067 (9th Cir. 2000)). Rule 10(a) of the Federal Rules of Civil Procedure

does not expressly permit parties to proceed anonymously, but courts have permitted

this course in exceptional cases. Megless, 654 F.3d at 408. The Third Circuit has

endorsed a non-exhaustive list of factors for courts to consider when determining

whether to allow plaintiffs to pursue litigation anonymously:

The factors in favor of anonymity included:

“(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. at 467–68. On the other side of the scale, factors disfavoring

anonymity included:

“(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.

Id. at 409-10 (quoting Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464, 467-

68 (E.D. Pa. 1997)). On this score, the Court of Appeals cautioned that this is not a

comprehensive list of factors to be considered and endorsed the Provident Life

court’s view that “trial courts ‘will always be required to consider those [other]

factors which the facts of the particular case implicate.’” Id.

Turning to the instant case, we find that the factors analysis weighs in favor

of the plaintiffs proceeding using pseudonyms at this time. First, the plaintiffs have

taken steps to keep their identities confidential. They have limited information in the

complaint regarding their most recent positions with the County, and they have not

informed any individuals about the sexual harassment and sexual assault other than

individuals who needed to know this information to perform their jobs related to this

case. Specifically, and significantly, Doe 1 has stated that she has not disclosed her

sexual assault by Halcovage to her family, friends, or children. Moreover, while the

defendants note that two of the plaintiffs have been identified in an online blog post,

the plaintiffs did not give that information to the press, and they contend their

attorney has been intentionally vague in any statements given about this matter in

order to protect the plaintiffs’ identities. Accordingly, we find that this first factor

weighs in favor of anonymity.

Second, the plaintiffs’ bases for proceeding anonymously—that they are

victims of sexual harassment, sexual abuse, and ongoing retaliation by County

officials—weighs in favor of anonymity. The plaintiffs contend that if their identities

were revealed to their friends, families, and communities, they may be stigmatized

in both their personal and professional lives, and they will experience increased and

ongoing embarrassment and humiliation. This is a consideration which has been held

to weigh in favor of anonymity for plaintiffs who have alleged they were sexually

harassed or assaulted. See e.g., Doe v. County of Lehigh, 2020 WL 7319544, at *4

(E.D. Pa. Dec. 11, 2020); Doe v. Lund’s Fisheries, Inc., 2020 WL 6749972, at *2-3

(D.N.J. Nov. 17, 2020); Doe v. Trishul Consultancy, LLC, 2019 WL 4750078, at

*4-5 (D.N.J. Sept. 30, 2019); Doe v. Evans, 202 F.R.D. 173, 176 (E.D. Pa. 2001).

The third factor—the magnitude of the public’s interest in the plaintiffs’

identities—similarly weighs in favor of anonymity, at least at the initial stages in

this case. For their part, the defendants contend that the public has an interest in the

plaintiffs’ identities because, as taxpayers ultimately would be responsible for

footing the bill for a judgment against a municipality, they should know to whom

the money would be paid. However, while the public certainly has an interest in this

matter, this argument misses the mark, and fails to adequately consider

countervailing considerations. There is also a recognized public interest in protecting

the identities of sexual assault victims. See Evans, 202 F.R.D. at 176. Further, while

some courts have held that victims of sexual harassment are not entitled to proceed

under a pseudonym, see Doe v. Court of Common Pleas of Butler County PA, 2017

WL 5069333, at *2 (W.D. Pa. Nov. 3, 2017), we find that this case presents a

particularly concerning set of circumstances—namely, that these plaintiffs were the

victims of sexual harassment, assault, and ongoing retaliation by supervisory County

officials, including the Chief County Commissioner at the time. Premature

disclosure of these plaintiffs’ identities, particularly at a time when we are in the

preliminary stages of this litigation, could expose them to additional and on-going

distress, embarrassment, and harassment. Accordingly, we find that this factor also

weighs in favor of the plaintiffs at this juncture.

The final two factors also weigh in favor of the plaintiffs proceeding under a

pseudonym. On this score, the plaintiffs have averred that they likely will not

continue to pursue this litigation if their identities are revealed to the public. They

contend that permitting them to proceed anonymously will allow them to be more

forthcoming and open about the very sensitive and personal aspects of this case. We

agree. Indeed, particularly in cases involving sexual assault, “there is a strong public

interest to maintain the confidentiality of a plaintiff’s identity due to h[er] status as

an alleged victim of sexual assault and the highly sensitive and personal nature of

the allegations underlying the plaintiff’s complaint.” Lund’s Fisheries, Inc., 2020

WL 6749972, at *3 (citing Evans, 202 F.R.D. at 176). Moreover, we cannot discern

any illegitimate ulterior motives for the plaintiffs’ requests to proceed anonymously.

Ultimately, we find that these factors weigh heavily in favor of permitting

these Doe plaintiffs to continue to litigate this case under pseudonyms at this

juncture. While we must take into consideration the factors disfavoring anonymity,

we find that these factors are far outweighed by the factors favoring anonymity. It is

true that the public has an interest in this case, which involves allegations of sexual

assault and harassment, as well as retaliation, by high-level County employees,

including a County Commissioner. However, we conclude that presently, disclosure

of the identity of the plaintiffs is not germane to the resolution of these issues. As

the Provident Life court noted, the plaintiffs’ “use of a pseudonym will not interfere

with the public’s right or ability to follow the proceedings.” Provident Life, 176

F.R.D. at 468.

In sum, at this time we find that the plaintiffs’ interest in proceeding through

this lawsuit anonymously outweighs the public’s interest in the identities of these

plaintiffs. Accordingly, we will deny the defendants’ request to prohibit the plaintiffs

from proceeding under pseudonyms at this juncture.

2. PHRA Claims

As we have explained, the plaintiffs bring claims against Bender under the

PHRA, alleging that he discriminated against them, retaliated against them, and

aided and abetted others’ discriminatory and retaliatory conduct. See 42 Pa. Cons.

Stat. §§ 955(a), (d), (e). The PHRA makes it unlawful for an employer to

discriminate with respect to compensation, hire, privileges, or other employment-

related benefits against an employee because of sex. § 955(a). An “employer” is

defined under the Act as “the Commonwealth or any political subdivision or board,

department, commission or school district thereof and any person employing four or

more persons within the Commonwealth . . .” § 954(b). The Act further prohibits

employers and employees from retaliating against an individual who reports

discriminatory conduct. § 955(d). In addition, the PHRA prohibits employers and

employees from aiding, abetting, or inciting discriminatory or retaliatory conduct. §

955(e).

For his part, Bender does not contest the PHRA aiding and abetting claim in

the instant motion. Therefore that claim will proceed forward. However, with respect

to the discrimination claim, Bender argues that he is not an “employer” and thus

cannot be held liable under § 955(a) for discrimination. For their part, the plaintiffs

contend that Bender, having supervisory authority, can be considered a “joint

employer” and therefore liable under § 955(a). The Third Circuit has aptly noted in

the past that, with respect to these discrimination claims,

Generally, the PHRA is applied in accordance with Title VII. Davis v.

Sheraton Society Hill Hotel, 907 F.Supp. 896, 899 n. 1 (E.D. Pa. 1995).

Like Title VII, the definition of an employer under the PHRA cannot

be construed to include “employees;” indeed, “employee” is defined as

a wholly separate term under the Act. See 43 Pa. Cons. Stat. Ann. §

954(b) & (c). The employment discrimination provision of the PHRA

declares only that “any employer” may be held liable. See 43 Pa. Cons.

Stat. Ann. § 955(a).

Dici v. Commonwealth of Pa., 91 F.3d 542, 552 (3d Cir. 1996). See also McIlmail

v. Pennsylvania, 381 F.Supp.3d 393, 415 (E.D. Pa. 2019) (“The PHRA is ‘generally

applied in accordance with Title VII,’ which exposes only employers to liability

while exempting individual employees. . .”) (internal citations omitted).

On this score, the plaintiffs argue that Bender has supervisory authority, and

thus, should be considered a “joint employer” liable for discrimination under the

PHRA. However, the plaintiffs have provided no authority for this proposition, and

an independent search has not yielded any caselaw in this circuit which would

suggest than an individual can be considered a “joint employer” of an employee.

Rather, cases discussing a joint employer relationship have almost exclusively

considered this joint employer relationship in the context of two entities, not

individual persons. See e.g., Faush v. Tuesday Morning, Inc., 808 F.3d 208, 215 (3d

Cir. 2015) (“Two entities may be “co-employers” or “joint employers” of one

employee for purposes of Title VII”); Showers v. Endoscopy Center of Central Pa.,

LLC, 58 F.Supp.3d 446, 456 n.7 (M.D. Pa. 2014) (“The court notes that two

corporations may also be consolidated under the ‘joint employer’ doctrine”); Myers

v. Garfield & Johnson Enterprises, Inc., 679 F.Supp.2d 598, 607 (E.D. Pa. 2010)

(“[A] finding that companies are ‘joint employers’ assumes in the first instance that

companies are . . . independent legal entities that have merely ‘historically chosen to

handle joint important aspects of their employer-employee relationship’”) (citations

omitted).

Accordingly, we are not persuaded by the plaintiffs’ assertion that Bender, an

individual employee, can also be considered a “joint employer” for purposes of their

PHRA discrimination claim. Therefore, in the absence of any legal authority

construing the PHRA in this fashion, with respect to the PHRA discrimination claim

against Defendant Bender, we conclude that this claim fails as a matter of law, as

Bender cannot be considered an “employer” under the PHRA. Of course, the

plaintiff’s may still pursue a PHRA discrimination claim against Bender on an aiding

and abetting theory. Such claims are explicitly recognized by statute, are not

contested by Bender, and properly lie here.

Moreover, we find that the plaintiffs have sufficiently alleged a claim of

retaliation under the PHRA against Bender. As we have noted, the PHRA’s

discrimination and retaliation provisions differ significantly in terms of the scope of

those who may be held culpable. Under the PHRA, discrimination claims lie only

against an “employer” and those who aid and abet the employer. In contrast, §

955(d) prohibits both employers and employees from retaliating against an

individual who reports discriminatory conduct. 42 Pa. Cons. Stat. § 955(d). Thus, in

order to sustain a PHRA retaliation claim, the plaintiffs must show that they engaged

in protected activity, suffered adverse action at the hands of the defendants, and show

a causal connection between their protected activity and the adverse action taken

against them. See Fasold v. Justice, 409 F.3d 178, 188-89 (3d Cir. 2005) (noting that

“retaliation claims . . . under the PHRA typically proceed under the McDonell

Douglas framework”).6

In the instant case, the plaintiffs have alleged that Bender, the County

Administrator, engaged in retaliatory behavior after they reported the discriminatory

conduct to which they were subjected. Thus, the amended complaint alleges that

Bender was present and overheard Halcovage’s sexually charged and inappropriate

comments and did not report it; that after the plaintiffs made reports about the sexual

harassment and assault, Bender authorized Halcovage to park in the same lot as Doe

3 and Doe 4; that Bender was involved in restructuring the plaintiffs’ work

responsibilities when he engaged in contract negotiations, which placed more

responsibilities on Doe 3 and Doe 4; that Bender was involved in the decision to

move Doe 1 and Doe 2 to the 410 building and prohibit them from working from

home; that Bender reprimanded Doe 3 and Doe 4 when they chose to work from

home after finding out that Halcovage had access to their work space; and that

Bender was involved in the restructuring of Doe 3 and Doe 4’s office, which led to

their demotions and led to Doe 1 and Doe 2 reporting directly to Bender; events

which then promptly led to disciplinary action against these plaintiffs, disciplinary

action that was approved by Bender.

6 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

With our review confined to these well-pleaded allegations in the plaintiffs’

amended complaint, we find that these allegations are sufficient at this stage to state

a claim for retaliation against Bender. The plaintiffs have alleged that they reported

discriminatory behavior to their supervisors and HR, and then were subsequently

subjected to a host of adverse actions, including demotions, pay decreases, and

increased work responsibilities, all of which Defendant Bender is alleged to have

been directly involved in. At this stage, where we must accept these factual

allegations as true, these allegations are sufficient to state a claim of retaliation

against Bender. Accordingly, the motion to dismiss this retaliation claim will be

denied.

3. Equal Protection Claims

Next, the defendants contend that the plaintiffs have failed to state a § 1983

claim against them for discrimination and creating a hostile work environment

because of their sex in violation of the Fourteenth Amendment.

To state an equal protection claim under § 1983, the plaintiffs must show “that

[they were] subjected to ‘purposeful discrimination’ because of [their] sex.”

Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997) (quoting Keenan

v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir. 1992)). Thus, the plaintiffs must

allege “(1) disparate treatment in relation to other similarly situated individuals, and

(2) that the discriminatory treatment was based on sex.” Id. (citing Andrews v. City

of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990)). The complaint must further

allege “some affirmative conduct by the supervisor that played a role in the

discrimination.” Andrews, 895 F.2d at 1478. Thus, “[t]he necessary involvement can

be shown in two ways, either ‘though allegations of personal direction or of actual

knowledge and acquiescence.’” Id. (quoting Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1988)).

Further, a plaintiff alleging that a defendant created a hostile work

environment on the basis of sex must allege that “(1) [S]he suffered intentional

discrimination because of her [sex]; (2) the discrimination was severe or pervasive;

(3) the discrimination detrimentally affected her; (4) it would have detrimentally

affected a reasonable person in like circumstances; and (5) a basis for employer

liability is present.” Komis v. Sec’y of U.S. Dep’t of Labor, 918 F.3d 289, 293 (3d

Cir. 2019) (citations omitted); see Starnes v. Butler County Court of Common Pleas,

50th Judicial District, 971 F.3d 416, 428 (3d Cir. 2020) (“[W]e have been clear that

§ 1983 shares the same elements for discrimination purposes as a Title VII action”).

“[A] hostile work environment exists ‘when the workplace is permeated with

“discriminatory intimidation, ridicule, and insult,” that is “sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.” ’ ” Starnes, 971 F.3d at 428 (quoting National R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (internal citations omitted)).

Moreover, it is well settled that “[t]he intent to discriminate on the basis of sex in

cases involving sexual propositions, innuendo . . . or sexual derogatory language is

implicit, and thus should be recognized as a matter of course.” Andrews, 895 F.2d

at 1482 n.3.

In the instant case, as to Defendant Bender, we conclude that the plaintiffs

have plausibly alleged a violation of the Equal Protection Clause against this

defendant. The plaintiffs assert that as four female employees of the County, they

and other female employees were subjected to sexual harassment, and in some

instances sexual assault, by a male supervisor, George Halcovage. The complaint

further alleges that Bender, the County Administrator, knew about this harassment

and did nothing to stop it. Rather, Bender is alleged to have taken part in a series of

retaliatory actions against these women who reported the sexual harassment by a

male supervisor. These actions include authorizing Halcovage to park in the same

lot as Doe 3 and Doe 4, reprimanding them for working from home, restructuring

their employees to create a larger workload for them, and ultimately restructuring

the office so as to demote Doe 3 and Doe 4, which led to Doe 1 and Doe 2 having to

report to Bender. Indeed, Doe 3 and Doe 4’s demotions and pay decreases came just

two days after the complaint was filed in the instant case. Thereafter, the Doe

plaintiffs were issued reprimands, verbal warnings, and were ultimately suspended

without pay.

Thus, read in its entirety, the complaint alleges what is characterized as

rampant sexual harassment, and in some instances sexual assault, over a period of

several years of female employees by a male Commissioner. This harassment was

allegedly known to Bender, who instead of acting on the harassment, engaged in

behavior that led to the plaintiffs, the alleged victims, being demoted and ultimately

suspended without pay after they reported this harassment of female employees. Not

only were the plaintiffs penalized with work-related discipline, but they also allege

that they were extremely distressed, embarrassed, and uncomfortable in the

workplace because of the actions of Halcovage and inactions of others like Bender.

Moreover, the Doe plaintiffs allege that they did not feel safe in the workplace

because of Halcovage and because they believed it was futile to report his behavior,

as other supervisory individuals such as Bender knew of the behavior and did not

act to prevent it. Thus, we find that at the pleading stage, the plaintiffs haves

sufficiently alleged disparate treatment and a hostile work environment based on sex

against Defendant Bender.

We similarly conclude that the plaintiffs have adequately stated a Monell

claim against the County for equal protection violations. The plaintiffs must meet an

exacting standard to hold this municipal entity liable under § 1983. It is well settled

that local governmental entities may not be held liable under § 1983 for the acts of

others under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S.

662; see also Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991).

Instead, such an agency may only be held liable “when execution of a government's

policy or custom, whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the injury that the government

as an entity is responsible under § 1983.” Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 694 (1978). Thus, to sustain a claim against this institutional defendant, a

plaintiff must “identify a ... ‘policy’ or ‘custom’ that caused the plaintiff's injury.”

Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997). This

custom must be “so widespread as to have the force of law.” Id. at 404; see also Beck

v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (a policy is an official

proclamation or edict of a municipality, while a custom is a practice that is “so

permanent and well settled as to virtually constitute law”) (quoting Andrews, 895

F.2d at 1480). On this score,

[A] policy or custom may exist where “the policymaker has failed to

act affirmatively at all, [though] the need to take some action to control

the agents of the government ‘is so obvious, and the inadequacy of the

existing practice so likely to result in the violation of constitutional

rights, that the policymaker can be said to have been deliberately

indifferent to the need.’”

Natale v. Camden County Correctional Facility, 318 F.3d 575, 584 (3d Cir.

2003) (quoting Brown, 520 U.S. at 417-18 (internal citations omitted)). Thus, an

avenue which a plaintiff may seek to hold a municipality liable is through the

municipality’s inaction, rather than an affirmative policy which resulted in the

plaintiffs’ alleged injuries.

The plaintiff must further “allege that a ‘policy or custom’ of [the defendants]

was the ‘moving force’ behind the [constitutional] violation.” Grayson v. Mayview

State Hosp., 293 F.3d 103, 107 (3d Cir. 2002) (citing Brown, 520 U.S. at 404).

Therefore, analysis of a claim under Monell requires separate analysis of two distinct

issues: “(1) whether plaintiff's harm was caused by a constitutional violation, and (2)

if so whether the [the institutional defendant] is responsible for that violation.”

Collins v. City of Harker Heights, Texas, 503 U.S. 115, 120 (1992).

Here, we find that the plaintiffs’ complaint adequately alleges municipal

liability against the County. The complaint alleges the County failed to adopt

policies to prevent the plaintiffs’ injuries and failed to adequately train and supervise

its employees. (Doc. 63, ¶ 359). The complaint further alleges that after the County’s

investigation into Halcovage, the County found that Halcovage had violated the

County’s Sexual Harassment Policy, the Conduct and Disciplinary Action Policy,

and the Physical and Verbal Abuse Policy. (Id., ¶ 164). Thus, while the complaint

does acknowledge the existence of these policies, the complaint also alleges that the

County failed to train its employees or supervise them to ensure that the policies, as

written, were enforced. Further, the plaintiffs contend that the supervisory

defendants failed to report any of the harassment they observed or that was reported

to them, and then retaliated against the victims of this alleged harassment..

Thus, while the complaint acknowledges the existence of policies to prevent

sexual harassment and workplace abuse, it also alleges that the supervisory

defendants failed to abide by these polices and permitted the sexual harassment and

abuse of the plaintiffs continue. The complaint asserts that the harassment and abuse

by Halcovage toward female employees was widespread and well known to these

supervisory defendants, who failed to report the behavior, and in some instances

retaliated against the alleged victims of Halcovage’s misconduct. Accordingly,

taking these allegations as true, we conclude that the plaintiffs have plausibly alleged

that the need for the County to take action was “so obvious, and the inadequacy of

existing practice so likely to result in the violation of constitutional rights, that the

policymaker can reasonably be said to have been deliberately indifferent to the

need.” Brown, 520 U.S. at 417-18 (internal quotations and citations omitted). Thus,

the defendants’ motion to dismiss will be denied with respect to the Fourteenth

Amendment claims.

4. Damages

Finally, Bender and the County contest the plaintiffs’ claim for punitive and

liquidated damages. Their motion asserts that punitive damages are not available

against the County as a municipal entity, and that liquidated and compensatory

damages are not authorized under Title VII. For their part, the plaintiffs contend that

they should be permitted to seek compensatory damages against the County under

Title VII and the PHRA and Bender under the PHRA, punitive damages against

Bender under the PHRA, and liquidated damages against the County and Bender.

As to their request for compensatory damages, the Civil Rights Act expressly

provides for an award of compensatory damages under Title VII. See 42 U.S.C. §

1981a(b). Likewise, compensatory damages are available to the plaintiffs under the

PHRA. See Taylor v. Central Pa. Drug and Alcohol Servs. Corp., 890 F.Supp. 360,

373 (M.D. Pa. 1995) (citing Brown Transport Corporation v. Commonwealth of

Pennsylvania, 578 A.2d 555, 562 (Pa. Commw. Ct. 1990) and Consumers Motor

Mart v. Pennsylvania Human Relations Commission, 529 A.2d 571 (Pa. Commw.

Ct. 1987) As such, the plaintiffs may proceed with a claim for compensatory

damages against these defendants.

However, the plaintiff’s request for punitive damages against Defendant

Bender under the PHRA fails as a matter of law. On this score, the Pennsylvania

Supreme Court has held that punitive damages are not available under the PHRA.

See Hoy v. Angelone, 720 A.2d 745, 751 (1998); Tudor v. TBGHealth, Inc., 2022

WL 1004874, at *4 n.5 (M.D. Pa. April 2, 2022) (citing Hoy, 720 A.2d at 751; Klein

v. Weidner, 729 F.3d 280, 288 (3d Cir. 2013) (granting summary judgment on the

plaintiff’s claim for punitive damages under the PHRA). Accordingly, the plaintiff’s

claim for punitive damages against Bender under the PRHA will be dismissed.

Finally, with respect to the plaintiffs’ claims for liquidated damages, we will

deny the defendants’ motion to dismiss. Courts in this circuit have differed in their

conclusions regarding whether liquidated damages are permitted under the PHRA.

Compare Potoski v. Wilkes Univ., 2010 WL 3811973 (M.D. Pa. Sept. 22, 2010)

(liquidated damages not available under the PHRA) with Craig v. Thomas Jefferson

University, 2009 WL 2038147, at *9 (E.D. Pa. July 7, 2009) (no caselaw establishing

that liquidated damages are unavailable under the PHRA).As to this issue, the

defendants’ brief is sparse with respect to relevant caselaw in this area. Accordingly,

given that the issue is not as clear-cut as the defendants suggest, we will decline to

strike the plaintiffs’ claim for liquidated damages at this juncture. See Bellas v.

WVHCS Retention Co., 2012 WL 3961227, at *7 (M.D. Pa. Sept. 10, 2012)

(declining to dismiss a liquidated damages demand at the motion to dismiss stage).

IV. Conclusion

Accordingly, for the foregoing reasons, Defendant Bender and the County’s

motion to dismiss (Doc. 71) will be GRANTED IN PART AND DENIED IN PART

as follows: The motion will be GRANTED with respect to the PHRA discrimination

claim against Defendant Bender (Count V), as well as the claim for punitive damages

against Bender under the PHRA. The motion will be DENIED in all other respects.

An appropriate order follows.

Dated: May 5, 2022

S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge