# Doe v. Schuylkill County Courthouse

> District Court, M.D. Pennsylvania · May 11, 2022

URL: https://www.frixlaw.com/law-library/cases/10411729

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 11, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10411729

## How later opinions describe it (automated extraction)

- noting that “retaliation claims . . . under the PHRA typically proceed under the McDonell Douglas framework”
- 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”

## Opinion text

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 supervisory 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 one of the defendants,
Doreen Kutzler, a Human Resources representative for the County.1 (Doc. 94). With
respect to Ms. Kutzler, the plaintiffs allege that she discriminated and retaliated

against them, and that she aided and abetted others’ discriminatory conduct in
violation of the Pennsylvania Human Relations Act (“PHRA”). They also assert that
Kutzler violated their rights under the Equal Protection Clause of the Fourteenth
Amendment by subjecting them to disparate treatment and a hostile work

environment. Finally, the plaintiffs assert a claim against Kutzler for First
Amendment retaliation.
In her motion, Ms. Kutzler contends that the complaint is devoid of any

allegations that she aided or abetted discriminatory conduct, subjected the plaintiffs
to disparate treatment or a hostile work environment, or that she retaliated against
the plaintiffs for speaking out about discriminatory conduct. She also argues that the
plaintiffs should not be permitted to proceed under their “Jane Doe” pseudonyms.2

1 The defendants have filed five separate motions to dismiss, which will be addressed
in separate memorandum opinions.
2 We have addressed the plaintiffs’ use of pseudonyms in a prior Memorandum
Opinion, deciding that at this juncture, the plaintiffs may proceed under their Jane
Doe pseudonyms. (Doc. 123).
This motion is fully briefed and is ripe for resolution. (Docs. 96, 98). In
considering this motion to dismiss we readily acknowledge that there are factual

distinctions between the alleged role of Ms. Kutzler in this case, and the conduct
alleged against other defendants, male senior executives in Schuylkill County who
are alleged to have directly participated in or witnesses acts of sexual predation

targeting county employees. The legal significance of these factual distinctions,
however, is a matter for determination at the close of discovery. For today’s purposes
we must evaluate the sufficiency of the plaintiffs’ pleadings which describe
instances of alleged harassment, punishment, and retaliation targeting the plaintiffs

undertaken by Ms. Kutzler and others.
With our judgment confined to these well-pleaded facts, for the reasons that
follow, we will grant the motion as to the direct discrimination claim brought under

the PHRA, since Ms. Kutzler was not the plaintiffs’ statutory employer, 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 escalated 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 suit, 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.)3

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
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

3 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).
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 Kutzler, the
amended complaint asserts the following claims by the Doe Plaintiffs:
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).4
Ms. Kutzler has now filed a motion to dismiss, arguing that the plaintiffs have

failed to state a claim against her. As we will discuss below, with the exception of
the direct discrimination claim under the PHRA, we find that the plaintiffs have
sufficiently stated causes of action against Ms. Kutzler at this stage. Accordingly,
the motion will be granted with respect to the PHRA discrimination claim but will

be denied in all other respects.

4 Count X was misnumbered as Count XIII. Thus, for ease of reference, we will refer
to the First Amendment retaliation claim as Count XIII.
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).
A. The Defendant’s Motion Should Be Granted in Part and Denied in
Part.

1. PHRA Claims
As we have explained, the plaintiffs bring claims against Kutzler under the
PHRA, alleging that she 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).

Thus, the PHRA recognizes four species of potential liability grounded upon
sexual harassment or retaliation in the workplace. First, an employer may be directly
liable for workplace discrimination. Second, “any person” may be directly liable for
retaliating against a person who reports workplace discrimination. In addition to

these two forms of direct liability, the PHRA also forbids persons from aiding or
abetting in either acts of (1) discrimination or (2) retaliation.
On this score, with respect to the direct PHRA discrimination claim, Kutzler

argues that she is not an “employer,” and since she is not an “employer” she cannot
be held liable under § 955(a) and (d) for discrimination or retaliation. For their part,
the plaintiffs contend that Kutzler 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 Kutzler 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 Kutzler, an
individual employee, can 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 direct PHRA discrimination
claim against Defendant Kutzler, we conclude that this claim fails as a matter of law,
as Kutzler cannot be considered a statutory “employer” under the PHRA. Of course,
as we discuss below, Kutzler may still be held liable under the PHRA for

discrimination against the plaintiffs on an aiding and abetting theory. Such an aiding
and abetting claim is expressly authorized by statute and encounters none of the
analytical obstacles which arise from the PHRA’s limitation of direct discrimination

liability to employers.
With respect to the retaliation claim, as we have noted, § 955(d) prohibits both
employers and employees from retaliating against an individual who reports
discriminatory conduct. 42 Pa. Cons. Stat. § 955(d). Indeed, the statute forbids

retaliation by “any person,” statutory language that is sweeping in its reach. Thus,
the plaintiffs must show that they engaged in protected activity, suffered adverse
action at the hands of the defendant, 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”).5 Here, the

plaintiffs allege that after they reported Halcovage’s conduct, both internally and to
the EEOC, they suffered retaliation in the form of denial of time off and denial of
requests to work from home. The complaint alleges that Kutzler was responsible for

ending Doe 1 and Doe 2’s work from home status and relocating them to the 410
building in November of 2020; denying Doe 1 and Doe 2’s requests for paid time
off in December of 2020; and allowing Bender and Halcovage to sign up for the
same sexual harassment training as Doe 3 and Doe 4 in February of 2021. In

addition, Kutzler is alleged to have been involved in pressuring a witness to sign an
untruthful statement in order to obtain a pretextual justification for terminating Jane
Doe 2. Thus, we find that the plaintiffs have adequately pleaded facts to state a claim

for retaliation against Ms. Kutzler.
Finally, with respect to aiding and abetting, typically “[a]n individual
employee may be exposed to liability under the aider and abettor provision only if
he acts in a supervisory role because ‘only supervisors can share the discriminatory

purpose and intent of the employer . . . required for aiding and abetting.’” McIlmail
v. Pennsylvania, 381 F.Supp.3d 393, 415 (E.D. Pa. 2019) (quoting Brzozowski v.
Pa. Tpk. Comm’n, 165 F.Supp.3d 251, 263 (E.D. Pa. 2016) (internal citations

5 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
omitted)); Davis v. Levy, Angestrich, Finney, Baldante, Rubenstein & Coren P.C.,
20 F.Supp.2d 885, 887 (E.D. Pa. 1998) (“[A]n individual supervisory employee can

be held liable under an aiding and abetting/accomplice liability theory pursuant to §
955(e) for his own direct acts of discrimination or for his failure to take action to
prevent further discrimination by an employee under supervision”). However, “no

court has limited the application of the PHRA to a plaintiff’s direct supervisors.”
Pamphile-Clerfe v. Program For Offenders, Inc., 2021 WL 5311970, at *7 (W.D.
Pa. Feb. 23, 2021) (citing Santai v. Fred Beans Ford, Inc., 2011 WL 3606836, at *3
(E.D. Pa. Aug. 16, 2011)).

On this score, HR representatives who are alleged to have authority over
benefits, promotions, demotions, or terminations of a plaintiff’s employment have
been held to meet the definition of a “supervisor” for purposes of the PHRA. See

Wirtz v. Unisys Corp., 2022 WL 970843, at *4-5 (E.D. Pa. March 30, 2022)
(denying a motion to dismiss a PHRA aiding and abetting claim against two
defendant HR representatives). Here, Ms. Kutzler, the Interim Human Resources
Director for the County at the time, is alleged to have had authority over the

plaintiffs’ employment, as the amended complaint alleges that Kutzler denied
requests for paid leave and relocated Doe 1 and Doe 2’s workspace without any
interactive process or discussions with them. Doe 1 and Doe 2’s requests to work

from home were made so that they would not encounter Halcovage, and the
complaint alleges that despite Kutzler’s assurances, Halcovage could actually access
the building. It is further alleged that Doe 2 reported to Kutzler that Halcovage was

following her, and Kutzler took no action. Moreover, as we have noted, the
complaint alleges that Kutzler was involved in pressuring a witness to sign an
untruthful statement in order to obtain a pretextual justification for terminating Jane

Doe 2. The plaintiffs allege that these decisions which affected their work
environment aided and abetted the retaliatory and discriminatory acts of the other
individual defendants. Accordingly, we find that at this stage, the plaintiffs have
sufficiently pleaded a claim against Kutzler for aiding and abetting under the PHRA.

Accordingly, the motion to dismiss this claim will be denied.
2. Equal Protection Claims
Next, Ms. Kutzler argues that the plaintiffs have failed to state a § 1983 claim

against her 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, the plaintiffs assert that Kutzler is liable under § 1983

because she failed to address the harassment by Halcovage and actually fostered the
harassment by subjecting the plaintiffs to adverse employment actions. Indeed, it is
well settled that the failure to act may constitute “acquiescence” on the part of an
individual. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997).

However, it is also well settled that,
[W]here actual supervisory authority is lacking, mere inaction, in most
circumstances, does not reasonably give rise to a similar inference. As
a general matter, a person who fails to act to correct the conduct of
someone over whom he or she has no supervisory authority cannot
fairly be said to have “acquiesced” in the latter's conduct.

Id.; see also Ditzler v. Housing Auth. of City of Nanticoke, 171 F.Supp.3d 363, 367
(M.D. Pa. 2016); Festa v. Jordan, 803 F.Supp.2d 319, 325 (M.D. Pa. 2011).
However, as we have explained with respect to the plaintiffs’ PHRA claims, an HR
director has supervisory authority where that individual has authority over benefits,
promotions, demotions, or terminations of a plaintiff’s employment.
In the instant case, the allegations in the amended complaint relating to Ms.
Kutzler are materially different than those leveled against Defendants Halcovage,
Bender, and Roth, since it is not alleged that Kutzler directly participated in, or
witnessed, acts of sexual harassment. However, we find that the allegations against

Kutzler are sufficient at this stage to show that she “played a role in the
discrimination” and thus contributed to the hostile work environment the plaintiffs
allegedly suffered. See McCowan v. City of Phila., 2022 WL 742687, at *32 (E.D.

Pa. March 10, 2022). The amended complaint alleges that Kutzler knew of the
ongoing discrimination perpetrated by Halcovage and the other individual
defendants, and that rather than acting to stop it, she contributed to the discrimination
by failing to aid the plaintiffs and later punishing them in what is alleged to have

been a pretextual fashion. For example, the complaint alleges that Doe 1 and Doe 2
requested to work from home so that they would not encounter Halcovage, and
Kutzler was responsible for reassigning them to work from the 410 building. The

plaintiffs allege that Doe 2 reported to Kutzler that Halcovage was following her and
Kutzler did not report it. Kutzler is also alleged to have permitted Defendants Bender
and Halcovage to sign up for the same sexual harassment training as Doe 3 and Doe
4. Finally, Kutzler was allegedly involved in pressuring a witness to sign an

untruthful statement as a pretextual justification to terminate Doe 2’s employment.
Thus, these allegations, taken as true, assert that Kutzler had personal
knowledge and acquiesced in the discriminatory conduct that created a hostile work

environment for the plaintiffs, and actually fostered this hostile work environment
and discriminatory conduct by taking adverse employment actions against the
plaintiffs. At the pleading stage, this is all that the plaintiffs need allege. Whether

the plaintiffs can prove what they have pled must await another day. Accordingly,
Kutzler’s motion to dismiss these Equal Protection claims will be denied.
3. First Amendment Retaliation

Finally, Kutzler contends that the plaintiffs have failed to state a claim against
her for retaliation under the First Amendment pursuant to § 1983.
In order to state a claim of retaliation under the First Amendment, a plaintiff
must show: “(1) that [she] engaged in a protected activity, (2) that defendants’

retaliatory action was sufficient to deter a person of ordinary firmness from
exercising his or her rights, and (3) that there was a causal connection between the
protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Thomas v. Independence Twp.,
463 F.3d 285, 296 (3d Cir. 2006)). Stated differently, the plaintiff must demonstrate
that the protected speech was “a ‘substantial factor’ in the alleged retaliatory action.”
McAndrew v. Bucks Cnty Bd. Of Comm'rs, 183 F.Supp.3d 713, 731 (E.D. Pa. 2016)

(citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)). If a plaintiff makes
such a showing, the burden then shifts to the defendants to show that, even if the
protected speech had not taken place, it would have taken the same action.
With respect to the third element, there are three ways in which a plaintiff can
establish causation for a First Amendment retaliation claim, showing, “(1) an

‘unusually suggestive temporal proximity’ between the speech and the alleged
retaliatory conduct;” (2) a ‘pattern of antagonism coupled with timing’; or (3) that
the ‘record as a whole’ permits the trier of fact to infer causation. McAndrew, 183

F.Supp.3d at 737 (quoting DeFlaminis, 480 F.3d at 267).
Furthermore, as we have explained with respect to the Equal Protection
claims, it is axiomatic that a defendant have personal involvement in the alleged
wrong in order to be held liable under § 1983, shown through specific allegations of

personal direction or of actual knowledge and acquiescence in the challenged
practice. See Robinson, 120 F.3d at 1294.
Here, we have already concluded that Kutzler had supervisory authority as the

Interim HR Director for the County. Moreover, as we observed with respect to the
PHRA retaliation claims brought against Kutzler, at this stage of the litigation, where
our evaluation is cabined by the well-pleaded facts in the amended complaint, we
find that the plaintiffs have plausibly alleged that Kutzler participated in some acts

that may be construed as retaliatory. Therefore, this claim also survives.
IV. Conclusion
Accordingly, for the foregoing reasons, the Defendant Kutzler’s motion to

dismiss (Doc. 94) will be GRANTED IN PART AND DENIED IN PART as
follows: the motion will be GRANTED with respect to the PHRA discrimination
claim and DENIED in all other respects.

An appropriate order follows.

Dated: May 11, 2022

S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411729. Public record. Not legal advice.