SIMMONS v. COMMUNITY EDUCATION CENTERS, INC.

Filing 14

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/20/2015. 4/20/2015 ENTERED AND COPIES, E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROSLYNN SIMMONS

CIVIL ACTION

v.
NO. 15-929
COMMUNITY EDUCATION
CENTERS, INC.
MEMORANDUM
KEARNEY,J.

April 20, 2015

In yet another challenge to the private prison owner's alleged mistreatment of minority
corrections officers serving at the George Hill Correctional Facility, we now review claims by a
present union leader that management fosters a hostile work environment, retaliates against
claimants and discriminates against African-American officers. As this present union leader
with seventeen years' experience cannot show an adverse employment action arising from
alleged discrimination against her, we dismiss her race discrimination claim under the
Pennsylvania Human Relations Act ("PHRA"). We also dismiss her employee-based state law
negligence and strict liability claims based on her alleged contracting of tuberculosis at the
prison as these allegations must be resolved through the Pennsylvania Workman's Compensation
Act. We also strike many paragraphs, largely copied from other Complaints in this District that
have nothing to do with her harm. 1 At this preliminary stage, we deny the motion to dismiss the
PHRA retaliation and hostile work environment claims which now proceed to discovery along
with other claims filed by the same lawyer on behalf of other minority officers.
1

See Kwaning v. Community Education Centers, Inc., C.A. No. 15-928 (E.D.Pa.); Mitchell v.
Community Education Centers, Inc., C.A. No. 14-5026, (E.D.Pa.) (Surrick, J.); Siler v.
Community Education Centers, Inc., C.A. No. 14-5019 (E.D.Pa.) (Robreno, J.); McWilliams v.
Community Education Centers, Inc., C.A. No. 14-4783 (E.D.Pa.); Black v. Community
Education Centers, Inc., C.A. No. 13-6102 (E.D.Pa) (DuBois, J.); and, Blocker v. Community
Education Centers, Inc., C.A. No. 13-5127 (E.D.Pa.) (Pratter, J.).

I.

Facts alleged in Complaint.
Plaintiff Roslynn Simmons ("Officer Simmons") is a corrections officer at the George

Hill Correctional Facility (the "Prison"), owned and run by Defendant Community Education
Centers, Inc. ("CEC"). (Id. 11111-2.) She began working at the Prison in 1998 and is now on the
Executive Board of the corrections officer union. (Id. 11 2.) In this capacity, Officer Simmons
learned of many instances of alleged racial discrimination against African-American officers.
(Id.) Officer Simmons encouraged those officers to come forward and make complaints but the

majority have not done so fearing retaliation. (Id. 112.)
Officer Simmons discussed the Prison's racial discrimination with CEC's Vice President
and Prison management. (Id. 1111 45, 85.) They did not follow-up or investigate. (!d.) Officer
Simmons alleges that the Prison subjects her and other African-American corrections officers to
differing standards of discipline and scrutiny. (Id.) As alleged, the Prison often disciplines white
officers more leniently, including no discipline, than African-American officers. Officer
Simmons alleges that this disproportionate discipline creates an atmosphere with a "chilling
effect" on African-American officers. (Id. 11 118.) African-American employees, including
Officer Simmons, are allegedly afraid of seeking promotions. (Id.)
In May 2013, after approximately fifteen (15) years of employment, Officer Simmons
filed an administrative charge with the EEOC and PHRA alleging race discrimination, retaliation
and hostile work environment. (Id. 11 119.) A newspaper then published an article concerning
the charge that did not specifically identify Officer Simmons but, according to her, transparently
referenced her as the complaining officer. (Id. 11 120.) After publication, Officer Simmons
alleges Prison employees including an assistant warden subjected her to "unwarranted scrutiny".
(Id. 11121-24.) The assistant warden, along with an employee from prison investigations, stated

2

"we are watching you" and "the camera is on you." (Id. 11121.) The assistant warden allegedly
made comments seemingly taunting Officer Simmons over her filing of the charge and that she
was going to lose at the administrative level. (Id. 11122-23.)
Officer Simmons also alleges that she contracted tuberculosis ("TB") from unsafe
conditions at the Prison. (Id. 11 4.) She alleges that the Prison made misrepresentations to
regulatory agencies regarding the training and staffing at the Prison, which allowed the Prison to
house more inmates. (Id. 11 3.) As a result, the prison became overcrowded and at some point
the Prison ran out of TB inoculations for the inmates. (Id. 11 4.) This created the risk that some
inmates and employees would be at risk to contract TB. Officer Simmons alleges that this
elevated risk led to her contraction of TB. (Id.)

II.

Analysis
Officer Simmons asserts only state law claims under the Pennsylvania Human Relations

Act ("PHRA") and Pennsylvania common law. 2 Officer Simmons alleges race discrimination,
hostile work environment, and retaliation in violation of the PHRA (Counts I, IX, and X).
(Compl., 1111 125-27, 151-56) Officer Simmons brings claims for negligence, gross negligence,
negligence per se, and strict liability relating to contracting TB at the Prison (Counts V, VI, VII,
and VIII).

3

(Id. 1111 140-50.) CEC moves to dismiss the Complaint pursuant to Fed.R.Civ.P.

12(b)(6). 4

2

This Court properly exercises diversity jurisdiction pursuant to 28 U.S.C. § 1332. Officer
Simmons is a Pennsylvania resident while CEC is a New Jersey corporation. The amount in
controversy exceeds $75,000.
3

Officer Simmons voluntarily withdrew her claims for unjust enrichment, breach of
contract, and breach of warranty (Counts II, III, and IV). (ECF Doc. No. 11).

4

A Rule 12(b)(6) motion to dismiss examines the complaint's sufficiency. See Kost v.
Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The complaint need not contain "detailed factual

3

A.

Discrimination under the PHRA (Count I)

A prima facie race discrimination claim requires: (1) the plaintiff is a member of a
protected class; (2) the plaintiff suffered an adverse employment action; and (3) the
circumstances of the adverse employment action give rise to an inference of discrimination. See
Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). 5

In a race discrimination claim, an

adverse employment action "encompasses all tangible employment actions 'such as hiring,
firing, failing to promote, reassignment or a decision causing significant change in benefits."
Sherrod v. Philadelphia Gas Works, 57 F. App'x 68, 73 (3d Cir. 2003) (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L. Ed. 2d 633 (1998)). The action
must be " 'serious and tangible enough to alter an employee's compensation, terms, conditions,
or privileges of employment.' " Storey v. Burns Intern. Sec. Servs., 390 F.3d 760, 764 (3d Cir.
2004) (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)). "The mere fact that the
employee 'generally finds [the conduct] objectionable' is not sufficient." Baker v. City of
Philadelphia, No. 05-1562, 2009 WL 3579815, at *7 (E.D. Pa. Oct. 27, 2009) (quoting Nelson v.
Upsala Coll., 51 F.3d 383, 388 (3d Cir. 1995).
CEC argues that Officer Simmons does not allege an adverse employment action. (ECF
Doc. No. 5, Def.'s Mem., 13.)

At oral argument, Plaintiff's counsel stated that Officer

allegations" but must set forth " 'sufficient factual matter to show that the claim is facially
plausible,' thus enabling 'the court to draw the reasonable inference that the defendant is liable
for [the] misconduct alleged.'" Warren Gen. Hosp., 643 F.3d at 84 (quoting Fowler, 578 F.3d at
210). We will dismiss a complaint if the factual allegations in the complaint are not sufficient
" 'to raise a right to relief above the speculative level.' " West Run Student Haus. Assocs., LLC v.
Huntington Nat'l Bank, 712 F.3d 165, 169 (3d Cir. 2013) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Plaintiff does not bring any federal claims under Title VII. However, Title VII and the
PHRA are interpreted together so we analyze PHRA claims under Title VII case law. Kelly v.
Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
4

Simmons' adverse employment actions consist of "fail[ing] to seek a higher-paying supervisor
position"; "constant scrutiny"; and, being "eye-balled" or "watched." (Mot. to Dismiss Oral
Arg. Tr., 51-53.)
These actions do not qualify as adverse employment actions. Officer Simmons' failure to
seek a higher paying job cannot constitute an adverse employment action. While a failure to
promote may provide the requisite adverse employment action, in general, the plaintiff must
actually apply for the open position. See .Johnson v. Independence Blue Cross, No. 09-4239,
2013 WL 1874954, at *10 (E.D. Pa. May 3, 2013) (citing Bray v. Marriott Hotels, 110 F.3d 986,
989-90 (3d Cir. 1997) (citation omitted)). Even in the absence of application, a plaintiff "may
press a failure-to-promote claim as long as he made 'every reasonable attempt to convey his
interest in the job to the employer.' " .Johnson, 2013 WL 1874954, at *10 (quoting EEOC v.
Metal Serv. Co., 892 F.2d 341, 348 (3d Cir. 1990)). Officer Simmons admits she did not apply
for a supervisor job. Officer Simmons does not allege she made "every reasonable attempt" to
bring her interest in a supervisor position to CEC's attention.
Without more, Officer Simmons' claims of being under constant scrutiny cannot form the
basis of an adverse employment action under the PHRA. Title VII and the PHRA "do not
provide relief for general unpleasantness that can occur in the workplace, even if that
unpleasantness may be motivated by racial animus." Barnes v. Nationwide Mut. Ins. Co., -

F.

App'x - , 2015 WL 301134, at *3 (3d Cir. Jan. 23, 2015). Officer Simmons does not allege that
due to this scrutiny she was disciplined in a way that may have affected her compensation, job
title, or conditions of her employment. She does not allege that she was transferred to another
unit with less favorable duties or demoted at any point throughout her long career with the
prison. Ultimately, Officer Simmons can point to no factual allegation in her Complaint that

5

amounts to an adverse employment action taken by CEC.

Despite the alleged air of racial

animus present at the Prison, Officer Simmons fails to show that CEC took such an action that
was materially adverse to her interest. Barnes, 2015 WL 301134, at *4. We find that Officer
Simmons fails to state a claim for race discrimination under the PHRA.

B.

Retaliation violating the PHRA (Count X).

A prima facie case of retaliation requires the plaintiff to plead: "( 1) that he engaged in
protected activity, (2) an adverse action by the employer either after or contemporaneous with
the employee's protected activity, and (3) a causal connection between the protected activity and
the employer's adverse action." Raffaele v. Potter, No. 09-3622, 2012 WL 33035, at *7 (E.D.
Pa. Jan. 6, 2012) (citations omitted).

Once a plaintiff establishes a prima facie case of

retaliation, the burden then shifts under the familiar McDonnell Douglas framework to the
defendant to proffer a legitimate non-discriminatory reason for its conduct. Moore v. City of

Philadelphia, 461F.3d331, 342 (3d Cir. 2006).
CEC argues that Officer Simmons' retaliation claim should be dismissed for failing to
assert a protected activity. 6 (ECF Doc. No. 5, Def's Mem., 11-12.) "With respect to protected
activity, the anti-retaliation provision of Title VII protects those who participate in certain Title
VII proceedings (the "participation clause") and those who oppose discrimination made unlawful
by Title VII (the "opposition clause")." Moore, 461 F.3d at 341 (citation omitted). Protected
activity may be in the form of
6

CEC additionally argues that Officer Simmons failed to exhaust her administrative
remedies with regard to the retaliation claim because it is not referenced in her administrative
charge. (ECF Doc. No. 5, Def.'s Mem., 10.) In multiple paragraphs, Officer Simmons alleges
that she complained to corporate, as well as the Prison management, about race discrimination.
(Id., Ex. B, 1f1f 45, 86.) We find that Officer Simmons' retaliation claim is "fairly within the
scope of the prior EEOC complaint, or the investigation arising therefrom." Waiters v. Parsons,
729 F.2d 233, 237 (3d Cir.1984). Defendant's motion is denied with regard to Officer Simmons'
failure to exhaust her retaliation claim.

6

informal protests of discriminatory employment practices, including making
complaints to management, writing critical letters to customers, protesting against
discrimination by industry or society in general, and expressing support for coworkers who have filed formal charges.

Curay-Cramer v. Ursuline Acad. of Wilmington, 450 F.3d 130, 135 (3d Cir.2006) (internal
quotation marks removed).
We find Officer Simmons alleges sufficient protected activity. Union representatives,
including Officer Simmons, "provided a Vice President of the corporation with a list of instances
of ... racial discrimination." (Compl.,

~

45.) This is protected activity and CEC conceded as

much at oral argument. (Mot. to Dismiss Oral Arg. Tr., 56.) Further, Officer Simmons alleges
that she made "repeated" requests to CEC concerning discrimination at the Prison. (Compl.,
85.)

~

Moreover, she made "repeated" verbal complaints to "sergeants, lieutenants, and the

union."

(Id.)

Lastly, Officer Simmons alleges that May 3, 2013 administrative charge

constitutes protected activity. 7 (Id.,~ 119.) These actions constitute protected activity.
We then determine whether Defendants responded to the above protected conduct by
imposing an adverse employment action. The adverse employment action standard differs in the
retaliation context. See Burlington N. & Santa Fe Ry. Co., 548 U.S. 53, 126 S.Ct. 2405, 165 L.
Ed. 2d 345 (2006). "In Burlington, the Court established an expansive standard for determining
if an employer's action was retaliatory." Lin v. Rohm and Haas, Co., No. 11-3158, 2015 WL
273035, at *3 (E.D. Pa. Jan. 20, 2015).

"The language of the substantive provision [of Title

VII] differs from that of the antiretaliation provision in important ways."

Burlington, 548 U.S.

at 61. The Court found that the antiretaliation provision is not limited to discriminatory actions

7

"[W]here, as here, additional acts of retaliation occur after the filing of an EEOC
complaint, while the EEOC's investigation is pending, a plaintiff need not file a new
administrative charge if the new acts are within the scope of [the] EEOC complaint or the
investigation growing out of that complaint." Lin v. Rohm and Haas Co., 865 F. Supp. 2d 649,
662 (E.D. Pa. 2012).
7

that effect the terms and conditions of the employment. Id. at 64. Rather, an adverse action must
be "materially adverse, which in this context means it might well have dissuaded a reasonable
worker from making or supporting a charge of discrimination." Id. at 68 (citation and internal
quotations omitted).
Defendants, allegedly doing nothing in response to Officer Simmons' complaints to
corporate, as well as her complaints to lieutenants, sergeants, and the union, did not retaliate with
an adverse employment action. (Compl.,

i! 45, 85.) " '[A]n employer's failure to investigate a

complaint of discrimination cannot be considered an adverse employment action taken in
retaliation for the filing of the same discrimination complaint.' " LeBlanc v. Hill School, No. 141674, 2015 WL 144135, at *17 (E.D. Pa. Jan. 12, 2015) (quoting Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010); see also Scott v. Sunoco Logistics Partners,

918 F. Supp. 2d 344, 356 (E.D. Pa. 2013) (noting that "a failure to investigate a complaint of
discrimination ... is not an adverse employment action.").
We find adverse employment action responsive to Officer Simmons' filing of her
administrative charge. The Prison scrutinized her without reason. (Compl., 1111 119-24.) A
newspaper article "published the fact that Officer Simmons had filed a claim for
discrimination." 8 (Id. 11 120.) Officer Simmons alleges that in June 2013, after Prison officials
learned that she filed the administrative charge, "prisons investigations" told Officer Simmons
"we are watching you ... the camera is on you." (Jd. 11121.) In September 2013, while Officer
Simmons counseled a colleague in a meeting with human resources, an assistant warden
repeatedly walked back and forth watching Officer Simmons. (Id. 11 122.) Officer Simmons

8

Officer Simmons does not allege the newspaper article itself was an adverse employment
action. The newspaper article did not use her name but, according to Officer Simmons, the
article included identifying characteristics leading a reader to deduce that she filed the charge.
8

further alleges that the same assistant warden made the "0-4" comment referring to Officer
Simmons' attorney's "win to loss ratio" representing African-American employees. (Id.

~

123.)

Members of senior management were also overheard making similar comments about Officer
Simmons' attorney. (Id.)
Officer Simmons alleges that this was part of a typical pattern of intimidation on the part
of the assistant warden and senior management against employees filing administrative charges.
We find, as the facts are alleged, this conduct by the assistant warden and senior management
might "dissuade a reasonable worker from making or supporting a charge of discrimination" in
the future.

Burlington, 548 U.S. at 68.

We find Officer Simmons has pled an adverse

employment action.
Finally, we determine whether there is a causal connection between the protected activity
and the adverse employment action. Plaintiff must allege "either (1) an unusually suggestive
temporal proximity between the protected activity and the alleged retaliatory action, or (2) a
pattern of antagonism coupled with timing ... " Lauren W v. Deflaminis, 480 F.3d 259, 267 (3d
Cir. 2007) (citations omitted). "Without such proof, the plaintiff must evidence that causation
can be inferred by the trier of fact from the entire record." Alers v. City of Philadelphia, 919 F.
Supp. 2d 528, 555 (E.D. Pa. 2013) (citing Lauren W, 480 F.3d at 267).
At this preliminary stage, we find Officer Simmons plausibly alleges a causal connection
between her protected activity and the adverse employment action. The pattern of antagonism
towards Officer Simmons is sufficient at this stage to plausibly state a claim. See Marra v.

Philadelphia Haus. Auth., 497 F.3d 286, 302 (3d Cir. 2007). Officer Simmons alleges that from
May to September 2013 the assistant warden and prisons investigations subjected her to
unwarranted scrutiny, as well as made comments meant to intimidate her after filing her

9

administrative charge. This pattern of antagonism towards Officer Simmons demonstrates a
retaliatory motive on the part of the employer and tends to show causation between the protected
act and the adverse employment action. See Walsh v. Wal Mart Stores, Inc., 200 Fed. App'x
134, 136 (3d Cir. 2006). Officer Simmons plausibly alleges a retaliation claim.

C.

Hostile Work Environment violating the PHRA (Count IX).

A prima facie case of hostile work environment requires a showing that (1) plaintiff
suffered intentional discrimination because of her race; (2) the discrimination was severe and
pervasive; (3) the discrimination detrimentally affected her; (4) the discrimination would
detrimentally affect a reasonable person of the same race in that position; and (5) respondeat
superior liability. Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990).
CEC argues that Officer Simmons fails to make a prima facie showing. 9 Specifically,
CEC argues that Officer Simmons did not allege severe or pervasive discrimination. (ECF Doc.
No. 5, Def.'s Mem., 9-10.) The vast majority of Officer Simmons' allegations, CEC argues,
contain references to conduct that Officer Simmons was not directly involved in. (Id.)
We agree the Complaint is rife with allegations regarding discriminatory actions against
other corrections officers. However, we recognize that these actions may be taken into account

whether a hostile work environment is present. See Velez v. QVC, 227 F. Supp. 2d 384, 410-11
(E.D. Pa. 2002). Since a plaintiff must show more than '"isolated indicia of a discriminatory
environment"', discriminatory conduct directed towards co-workers may be highly relevant. Id.
at 410 (quoting Vinson v. Taylor, 753 F.2d 141, 146 n.40 (D.C. Cir. 1985)). However, the
9

CEC also contends that Officer Simmons failed to exhaust her hostile work environment
claim. We disagree. Officer Simmons alleges in her administrative charge that she was subject
to discrimination, retaliation, and harassment each year of her employment at the Prison. (ECF
Doc. No. 7-1, 18.) We find that the hostile work environment claim "can reasonably be
expected to grow out of the charge of discrimination." Ostapowicz v. Johnson Bronze Co., 541
F.2d 394, 398-99 (3d Cir. 1976). We deny this exhaustion argument.
10

pleading of these incidents alone is not sufficient to state a claim but at this stage, the lack of
direct discrimination inflicted upon Officer Simmons is not determinative.
"Rather, a plaintiff relying upon the employer's past discriminatory conduct towards
other employees must show that he or she was aware of the incidents during his or her term of
the employment, and that, under the circumstances of the case, there is a nexus between the
discrimination directed at him or her, and that directed at others." Velez, 227 F. Supp. 2d at 410.
The relevant inquiry when determining whether a nexus exists is "[w]hether ... in light of ...
incidents [directed at other employees], the incidents [that the plaintiff] experienced more
directly 'would reasonably be perceived and [were] perceived, as hostile or abusive .... " Id. at
411 (quoting Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997)) (alteration in
original).
As to the awareness, Officer Simmons pleads that as a union representative she has heard
of many instances of discriminatory conduct by the Prison.

(Compl., 11 2.)

Further, she

encouraged many of the employees to come forward and make complaints, but many declined in
fear of retaliation. (Id.) We are satisfied that Officer Simmons was aware of many of the
instances of discriminatory conduct alleged in the Complaint. Velez, 227 F. Supp. 2d at 411
("Hearing about [discriminatory events] even second hand, is sufficient to make a plaintiff aware
of the nature of the environment in which he works.").
Officer Simmons must also "show a nexus between the discrimination directed at him or
her and that directed at others." Velez, 227 F. Supp. 2d at 411. Officer Simmons alleges she
Prison subjected her to unwarranted scrutiny; she enjoyed less job security than white corrections
officers; and, a white officer "took issue" with Officer Simmons' decision to vote for President
Obama.

Standing alone, these allegations are insufficient to state a claim for hostile work

11

environment. Id. at 414. However, in light of the other allegations that Officer Simmons was
aware of, we find that Officer Simmons reasonably perceives these incidents as hostile or
abusive. Id. at 411. Officer Simmons alleges her awareness of other acts of race discrimination,
including a photograph of an African-American corrections officer with a noose drawn around
her neck, pictures portraying African-Americans with enlarged nostrils, and using racial slurs.
(Compl., 11 35, 40, 56.) Given the "totality of the circumstances'', we find Officer Simmons
states a claim for hostile work environment at this preliminary stage.
D.

The Pennsylvania Workers' Compensation Act ("PWCA") bars Officer
Simmons' negligence and strict liability claims.

The PWCA provides the exclusive remedy for an employee injured in the scope of her
employment. See 77 Pa. Con. Stat. Ann. § 481(a).

Pennsylvania state and federal courts

consistently apply PWCA exclusivity. See Poyser v. Newman & Co., Inc., 522 A.2d 548 (Pa.
1987); Winterberg v. Trans. Ins. Co., 72 F.3d 318, 323 (3d Cir. 1995).

In exchange for

surrendering their rights to recover at common law, employees are essentially guaranteed
compensation for injuries incurred on the job without establishing the employer's fault. Poyser,
522 A.2d at 550. "Where the PWCA's exclusivity provision applies, Pennsylvania courts lack
subject-matter jurisdiction to consider an employee's tort claims." Uon v. Tanabe Intern. Co.,
Ltd., No. 10-3792, 2010 WL4861436, at *3 (E.D. Pa. Nov. 30, 2010).

CEC argues that the PWCA bars Officer Simmons' tort claims for workplace injury
because she was ,inflicted with TB in the scope of her employment. (ECF Doc. No. 6, Def.'s
Supp. Mem.) Consequently, she is precluded from bringing negligence claims against CEC to
recover for her work place injury. (Id.)
Officer Simmons argues her contraction of TB fits within an exception to the PWCA's
exclusivity.

(ECF Doc. No. 12-1, Pl.'s Mem., 11-12.)
12

Officer Simmons alleges that she

contracted TB after the Prison continued bringing in new prisoners even though there was a
shortage of TB vaccines. (fd.) This conduct, combined with prison overcrowding, contributed to
Officer Simmons contracting TB.

(Id.)

Officer Simmons then asks us to follow the

Pennsylvania Supreme Court's decision in Martin v. Lancaster Battery Co., 606 A.2d 444 (Pa.
1992). (Id.)

Martin does not apply to Officer Simmons' state law claims.
In Martin, the Pennsylvania Supreme Court carved a very narrow exception to PWCA's

general exclusivity.

Lancaster Battery Company employed Martin.

batteries exposed employees to lead dust and fumes.

Its manufacturing of

As required by federal regulation,

Lancaster Battery conducted testing to monitor employees' lead content in their blood.
Lancaster Battery tested Martin. Lancaster Battery Company's manager intentionally withheld
Martin's test results and altered the results. Martin was subsequently diagnosed with "chronic
lead toxicity, lead neuropathy, hypertension, gout, and renal insufficiency." Martin, 606 A.2d at
446. The severity of Martin's condition could have been reduced if defendant had not engaged
in the intentional conduct. The Pennsylvania Supreme Court held PWCA's exclusivity provision
did not apply because where "[t]he aggravation of the injury arises from and is related to the
fraudulent misrepresentation of the employer", the employee is not limited by the PWCA in
seeking recovery at common law. Martin, 606 A.2d at 448.
The cases post-Martin reinforce that this narrow exception is limited to the facts in

Martin. Winterberg, 72 F.3d at 323-24; Uon, 2010 WL 4861436, at *4; Kostryckyj v. Pentron
Lab. Techs., LLC, 52 A.3d 333, 337-40 (Pa. Super Ct. 2012). To meet the Martin exception, a
plaintiff must show "(1) fraudulent misrepresentation, which (2) leads to the aggravation of an
employee's pre-existing condition." Kostryckyj, 52 A.3d at 338. Our Court of Appeals has

13

cautioned that "flagrant misconduct" or "bad faith" cannot be the standard for applying the
Martin exception, otherwise the workers'

compensation scheme "runs the risk of

dismantlement." Winterberg, 72 F.3d at 322-23. The Pennsylvania Supreme Court in Martin
acknowledged as much:
There is a difference between employers who tolerate workplace conditions that
will result in a certain number of injuries or illnesses and those who actively
mislead employees already suffering as the victims of workplace hazards, thereby
precluding such employees from limiting their contact with the hazard and from
receiving prompt medical attention and care.
Martin, 606 A.2d at 448.
Here, Officer Simmons' claims cannot fit in the very narrow exception carved out by
Martin. First, Officer Simmons does not allege that the Prison, or any prison employee, made
any fraudulent misrepresentation to her personally. Instead, Officer Simmons argues that the
Prison made misrepresentations to "certain regulatory agencies." (Compl.,
misrepresentations allegedly led to Officer Simmons contracting TB.

~

3.)

These

However, making

misrepresentations to federal agencies is not sufficient. See Poyser, 522 A.2d at 551 (affirming
PWCA's preclusion of a products liability claim where defendant deliberately concealed
dangerous working condition from federal inspectors). Officer Simmons does not plead that
CEC mislead her regarding the spread of TB.

While the Prison's conduct may amount to

"deliberate and wanton disregard for the safety of its workers'', this is not enough to exclude her
claims from PWCA's exclusivity. Id.
Even assuming arguendo Officer Simmons is able to show CEC's fraudulent
misrepresentation, her claims still fail to meet the Martin exception because she is not
complaining of aggravation of a pre-existing injury. See Kostryckyi, 52 A.3d at 338. Officer
Simmons is attempting to recover for the injury itself. In Martin, the plaintiff was not attempting

14

to recover for the injury itself, but rather for the aggravation of the injury. 606 A.2d at 447
("[Plaintiff] is not seeking compensation for the work-related injury itself in this action."). The

post-Martin cases make clear that the injury must have been pre-existing and would have been
reduced if his employer had not "perpetrated the fraudulent misrepresentation." Care, 2004 WL
728532, at *12.

Simmons is seeking compensation for the injury itself rather than the

exacerbation of the injury from any alleged CEC fraud. Her negligence and strict liability claims
do not fit within the very narrow Martin exception and are barred by PWCA's exclusivity.

E.

Motion to Strike

Rule 12(f) permits a party to move to "strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f)(2). "Motions
to strike are decided on the pleadings alone, and should not be granted unless the relevant
insufficiency is 'clearly apparent.' " Hanover Ins. Co. v. Ryan, 619 F. Supp. 2d 127, 132-33
(E.D.Pa.2007) (quoting Cipollone v. Liggett Group, Inc., 789 F.2d 181, 188 (3d Cir. 1986)).
CEC moves to strike paragraphs 9-44, 46-74, 75-81, 83-84, and 86-117 as impertinent to
the claims at hand. 10 (ECF Doc. No. 5, Def.'s Mem., 19-22.) Again, as we and our esteemed
colleagues have done before, we find many of the paragraphs contained in Officer Simmons'

10

CEC also moves to strike various paragraphs as time barred. Because we believe that
some of the allegations CEC seeks to strike as time-barred are relevant to the claims, we will not
undergo that analysis. See Tate v. Main Line Hasps., Inc., No. 03-6081, 2005 WL 300068, at
*13-14 (E.D. Pa. Feb. 8, 2005) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
117, 122 S.Ct. 2061, 153 L.Ed.2d. 106 92002)). "'[T]he entire time period of the hostile work
environment may be considered by a court for the purposes of determining liability' as long as
'an act contributing to the claim occurs within the filing period."' Id. (quoting Morgan, 536 U.S.
at 117) (finding this analysis also applied to PHRA claim).
15

lengthy Complaint irrelevant to the claims at hand. We strike paragraphs 10, 11, 15, 15 11 , 21-22,
39,42,46-49,53,89,94-109, 111, 113-117.

III.

Conclusion

Officer Simmons plausibly states claims for retaliation and hostile work environment
violating the PHRA. However, Officer Simmons fails to allege sufficient facts to show she was
subject to an adverse employment action for purposes of her race discrimination claim. Officer
Simmons' negligence and strict liability claims are barred by the PWCA as it provides the
exclusive remedy for employees allegedly injured in the scope of employment. Lastly, we strike
several allegations unrelated to Officer Simmons's claims.

11

The Complaint contains two paragraphs numbered as 15. Both are stricken.
16