ROSH v. THE GOLD STANDARD CAFE et al

Filing 16

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/19/16. 12/20/16 ENTERED AND COPIES E-MAILED.(mbh, )

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

UNMY ROSH

:
:
v.
:
:
THE GOLD STANDARD CAFÉ AT PENN, INC., :
ET AL.
:

CIVIL ACTION
NO. 16-1676

MEMORANDUM
SURRICK, J.

DECEMBER 19_ , 2016

Presently before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint. (ECF
No. 14.) For the following reasons, the Motion will be granted in part and denied in part.
I.

BACKGROUND
Plaintiff’s First Amended Complaint alleges that on July 19, 2011, Plaintiff was hired to

work as a prep cook at Defendant Gold Standard Café at Penn, Inc. (“Gold Standard Café”).
(Am. Compl. ¶ 17, ECF No. 13.) Defendants Vincent Whittacre, Roger Harman, and Jose Brion
were co-owners of Defendant Gold Standard Café during the time that Plaintiff was employed
there. (Id. ¶ 9.) Plaintiff alleges that she was sexually assaulted on multiple occasions while she
was working for Defendants. In September 2011, one of her co-workers, Gerardo Solobino
(“Solobino”), grabbed her in the crotch area while she was at work. (Id. ¶ 19.) Solobino also
made attempts to touch Plaintiff’s breasts, and consistently stared at her breasts while at work.
(Id. ¶ 20.) On May 28, 2012, while Plaintiff was wearing shorts, Solobino pretended to pick up
an item from the floor and intentionally touched Plaintiff’s legs. (Id. ¶ 25.) Beginning in
January 2012, another one of Plaintiff’s co-workers, Josue Leon Velazquez (“Velazquez”),
attempted to touch Plaintiff and made multiple sexually inappropriate comments towards

Plaintiff while at work. (Id. ¶ 21.) Plaintiff alleges that these actions were “offensive,
unwelcome and sexually harassing in nature.” (Id. ¶ 22.) Plaintiff told Solobino and Velazquez
to stop sexually harassing her; however, both of her co-workers continued with their
inappropriate behavior. (Id. ¶¶ 23, 24.)
On May 30, 2012, Plaintiff reported the sexual harassment to Defendant Whittacre. (Id. ¶
26.) Plaintiff then reported the harassment to Defendant Brion. (Id. ¶ 28.) Defendants
Whittacre and Brion told Plaintiff that they would speak to Solobino and Velazquez about the
matter. (Id. ¶ 29.) Nevertheless, Solobino and Velazquez continued to sexually harass Plaintiff.
(Id. ¶ 30.) Plaintiff subsequently sent an email to Defendants on August 13, 2012, complaining
that the sexual harassment had continued. (Id. ¶ 31.) Defendant Harman responded, stating that
Defendants would stop the harassment. (Id. ¶ 32.) Defendants Brion and Harman subsequently
met with Plaintiff regarding the sexual harassment, and Plaintiff told them that Solobino had
grabbed her in the crotch area and that she was afraid of Solobino. (Id. ¶ 34.) Defendant
Harman told Plaintiff that he would speak to Solobino and Velazquez. (Id. ¶ 35.)
Plaintiff alleges that the sexual harassment continued. (Id. ¶ 36.) On September 21,
2012, Plaintiff sent a letter to Defendants reporting that Solobino and Velazquez were continuing
to sexually harass her and asking Defendants to take action. (Id.) In the letter, Plaintiff wrote
that she would report Defendants to the Pennsylvania Human Relations Commission (“PHRC”)
if they did not take appropriate remedial action. (Id. ¶ 37.) Following the September 21 letter,
Solobino and Velaquez continued to sexually harass Plaintiff. (Id. ¶ 38.) On October 11, 2012,
Plaintiff again reported the ongoing harassment to Defendants. (Id. ¶ 39.) Plaintiff informed
Defendants that their previous attempts to stop the harassment were “inappropriate.” (Id.)
Plaintiff alleges that after reporting to Defendants on October 11, Defendant Brion stopped

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speaking to her and reduced her work hours. (Id. ¶ 40.) On October 15, 2012, Defendant
Harman told Plaintiff to try to stop the harassment on her own. (Id. ¶ 41.) On October 29, 2012,
Plaintiff resigned. (Id. ¶ 42.) Plaintiff alleges that she had no choice but to resign because
Defendants refused to address her reports of sexual harassment, because she was being
discriminated against, and because Defendants retaliated against her. (Id.)
On April 8, 2016, Plaintiff filed her Complaint. (Compl., ECF No. 1.) On October 11,
2016, Plaintiff filed a First Amended Complaint adding Defendant Gold Standard Café at Penn,
Inc. as a party. The First Amended Complaint alleges that Defendants discriminated against her
by subjecting her to a hostile work environment, constructively discharging her, and retaliating
against her for reporting the harassment. (Am. Compl. ¶¶ 52, 54, 58, 59.) Plaintiff seeks relief
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) (“Title VII”) (Counts I and
II), and under the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 951 (“PHRA”)
(Counts III and IV). On October 31, 2016, Defendants filed the instant Motion to Dismiss and
Memorandum. (Defs.’ Mot., ECF No. 14.) On November 8, 2016, Plaintiff filed a Response in
Opposition to Defendants’ Motion to Dismiss. (Pl.’s Resp., ECF No. 15.)
II.

LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), “a pleading that states a claim for relief

must contain a short and plain statement of the claim showing that the pleader is entitled to
relief.” Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for
“failure to state a claim upon which relief can be granted.” “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

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A complaint that merely alleges entitlement to relief, without alleging facts that show
entitlement, must be dismissed. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
This “‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls
for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the
necessary element.” Phillips v. Cty. Of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556). When deciding a motion to dismiss, a district court must accept all
well-pleaded facts, disregarding any legal conclusions alleged in the complaint. Fowler, 578
F.3d at 210-11.
III.

DISCUSSION
Plaintiff brings Title VII and PHRA claims against Defendant Gold Standard Café and

against the individual co-owners, Defendants Whittacre, Harman, and Brion. We will address
Plaintiff’s claims against Defendant Gold Standard Café and the individual co-owner Defendants
separately.
A.

Defendant Gold Standard Café

Plaintiff alleges that Defendants’ actions violated both Title VII and the PHRA. For our
purposes, “[t]he proper analysis under Title VII and the [PHRA] is identical, as Pennsylvania
courts have construed the protections of the two acts interchangeably.” Weston v. Pennsylvania,
251 F.3d 420, 426 n.3 (3d Cir. 2001), overruled in part on other grounds by Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); see also Dici v. Com. of Pa., 91 F.3d 542, 552
(3d Cir. 1996) (“Generally, the PHRA is applied in accordance with Title VII.”); Davis v.
Sheraton Soc’y Hill Hotel, 907 F. Supp. 896, 899 n.1 (E.D. Pa. 1995) (“The PHRA is applied to
accord with Title VII. For this reason, our discussion under Title VII applies equally to the
PHRA claim.”); Driscoll v. Lincoln Tech. Inst., 702 F. Supp. 2d 542, 545-46 (E.D. Pa. 2010)

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(analyzing Title VII and the PHRA under the same standard and noting that the “PHRA uses
nearly identical language” to Title VII). Therefore, we will analyze Plaintiff’s PHRA claim
under the Title VII standard.
Under Title VII, an employer may not “discharge . . . or . . . discriminate against any
individual with respect to . . . compensation, terms, conditions, or privileges of employment
because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). Plaintiff’s First Amended Complaint alleges the following: Defendant created a hostile
work environment; Plaintiff was constructively discharged because of the work environment;
and Defendant retaliated against her because she reported incidents of sexual harassment. We
will address each in turn.
1.

Hostile Work Environment

A plaintiff states a claim under Title VII if she alleges that she experienced sexual
harassment in the workplace, which in turn created a hostile work environment. Huston v.
Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009). In order for Plaintiff
to establish a hostile work environment claim against Defendant Gold Standard Café, she must
prove that: (1) she suffered intentional discrimination because of her sex; (2) the discrimination
was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the
discrimination would detrimentally affect a reasonable person of the same sex in that position;
and (5) Defendant Gold Standard Café is subject to liability under the theory of respondeat
superior. Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990).
When determining whether the work environment was hostile, we must consider the
totality of the circumstances, including “the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it

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unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23 (1993).
With regard to the first factor, the Third Circuit has noted that “when the harasser and
victim are of the opposite sex, there is a reasonable inference that the harasser is acting because
of the victim’s sex.” Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir. 2001)
(citing Oncale v. Sundowner Offshore Sevs., Inc., 523 U.S. 75, 80 (1998)). Here, Plaintiff
alleged that Solobino grabbed her crotch area and that Solobino and Velazquez both made
sexually inappropriate comments towards her and attempted to touch Plaintiff’s breasts and body
on multiple occasions. (Id. ¶¶ 19-21). Solobino and Velazquez are both men. Plaintiff has
alleged facts sufficient to claim that she suffered from the harassment because she was female.
With regard to the second factor, the harassment must be “sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working environment.”
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal citation and quotation marks
omitted). “[S]imple teasing, offhand comments and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the terms and conditions of employment.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks omitted);
see also Anderson v. Deluxe Homes of PA, Inc., 131 F. Supp. 2d 637, 645 n.3 (M.D. Pa. 2001)
(“Title VII does not prohibit genuine but innocuous differences in the ways men and women
routinely interact with members of their own or the opposite sex.”). Here, Plaintiff alleges a
number of instances where her co-workers grabbed at her inappropriately, made sexually
inappropriate comments towards her, and attempted to make physical advances towards her.
Further, Plaintiff alleges that Solobino actually grabbed Plaintiff in the crotch area while she was
working. (Am. Compl. ¶ 19.) Clearly this behavior is not innocuous, and does not constitute

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simple teasing. This conduct is severe. In addition, Plaintiff’s allegations do not simply state
offhand or isolated incidents. Plaintiff alleges that the incidents of sexual harassment occurred
continuously over the course of twelve months, beginning in September 2011 and lasting until
she resigned in October 2012. (Id. ¶¶ 19, 42.) We are satisfied that Plaintiff has sufficiently
alleged that she was subjected to severe and pervasive sexual discrimination.
With regard to the third factor, Plaintiff must allege that Solobino and Velazquez’s
actions and comments were unwelcome and that she found her work environment abusive.
Meritor, 477 U.S. at 68 (“The correct inquiry is whether [the plaintiff] by her conduct indicated
that the alleged sexual advances were unwelcome . . . .”); see also Harris, 510 U.S. at 21-22
(“[I]f the victim does not subjectively perceive the environment to be abusive, the conduct has
not actually altered the conditions of the victim’s employment, and there is no Title VII
violation.”). Plaintiff has alleged sufficient facts to prove that her co-workers’ actions were
unwelcome and abusive. Plaintiff stated that she found her co-workers’ actions “offensive,
unwelcome and sexually harassing in nature,” and that she asked them to stop harassing her.
(Am. Compl. ¶ 22, 23.) In fact, Plaintiff asked Defendants to stop the harassing behavior on
multiple occasions. Plaintiff also stated that she was afraid of Solobino. (Id. ¶ 34.) We are
satisfied that Solobino and Velazquez’s actions were unwelcome, abusive, and detrimentally
affected Plaintiff.
With regard to the fourth factor, Plaintiff must plead sufficient facts to demonstrate that a
reasonable person would be detrimentally affected by the harassment. Anderson, 131 F. Supp.
2d at 647; see also Harris, 510 U.S. at 21 (finding that the court must consider whether the
alleged harassment would create “an environment that a reasonable person would find hostile or
abusive”). Plaintiff’s co-workers grabbed her crotch area, made sexually inappropriate

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comments towards her, and attempted to touch Plaintiff’s breasts and body on multiple
occasions. Any reasonable person would find these actions both hostile and abusive.
With regard to the fifth factor, Defendant Gold Standard Café will be found liable under
the theory of respondeat superior if “management-level employees had actual or constructive
knowledge about the existence of a sexually hostile environment and failed to take prompt and
adequate remedial action . . . .” Andrews, 895 F.2d at 1486 (citation and quotation marks
omitted); see also Huston, 568 F.3d at 105 (holding that an employer will be held directly liable
for an employee’s sexual harassment “only if the employer was negligent . . . in responding to a
report of such harassment.”); Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999)
(noting that an employer will not automatically be found liable for a hostile work environment).
Defendants argue that Plaintiff’s Complaint has not alleged sufficient facts that would lead to
liability for Defendant Gold Standard Café. (Defs.’ Mot. 6.) We disagree.
Defendants Whittacre, Harman, and Brion were co-owners of Defendant Gold Standard
Café during the relevant period, and thus qualify as management-level employees. Huston, 568
F.3d at 107 (concluding that an employer qualifies as a management-level employee if the
employee is “sufficiently senior in the employer’s governing hierarchy, or otherwise in a position
of administrative responsibility over employees under him . . . so that such knowledge is
important to the employee’s general managerial duties.”). Plaintiff informed Defendant coowners of the ongoing sexual harassment on at least four separate occasions. (Am. Compl. ¶¶
26, 31, 36, 39.) Once an employer has knowledge of the sexual harassment, it must take prompt
and adequate actions reasonably calculated to prevent further harassment. Knabe v. Boury
Corp., 114 F.3d 407, 411 n.8 (3d Cir. 1997). Plaintiff first reported instances of sexual
harassment to Defendants on May 30, 2012. (Am. Compl. ¶ 26.) Defendants assured Plaintiff

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that they would speak to Solobino and Velazquez. (Id. ¶ 29.) When the harassment did not stop,
Plaintiff continued to report the harassment via email, letter, and in-person. (Id. ¶ ¶ 31, 36, 39.)
On October 11, 2012, Defendant Brion stopped speaking to Plaintiff. (Id. ¶ 40.) On October 15,
2012, Defendant Harman told Plaintiff that she should stop the harassment on her own. (Id. ¶
41.) Solobino and Velazquez continued to harass Plaintiff until she resigned on October 29,
2012. (Id. ¶ 42.) Other than speaking with Solobino and Velazquez, Defendants did not take
any additional steps to remedy the situation. (Id. ¶¶ 29, 35.) Even after Plaintiff indicated that
Defendants’ conversation with Solobino and Velazquez were ineffective, Defendants did not
take any further steps to attempt to stop the harassment. To the contrary, Defendants stopped
speaking to Plaintiff and told her to fix the situation on her own. Plaintiff has pled facts
sufficient to demonstrate that Defendants’ actions were not reasonably calculated to prevent
further harassment.
Accordingly, Plaintiff has sufficiently stated a Title VII discrimination claim against
Defendant Gold Standard Café for a hostile work environment.
2.

Constructive Discharge

Plaintiff argues that she was constructively discharged because of the hostile work
environment and because she reported incidents of sexual harassment to Defendants to no avail.
(Am. Compl. ¶ 59.) “Under the constructive discharge doctrine, an employee’s reasonable
decision to resign because of unendurable working conditions is assimilated to a formal
discharge . . . .” Pa. State Police v. Suders, 542 U.S. 129, 141 (2004). “The resignation is
treated as if it were an outright dismissal by the employer, which can serve as the basis for a
discrimination claim.” Hibbard v. Penn-Trafford Sch. Dist., No. 13-622, 2014 WL 640253, at *7
(W.D. Pa. Feb. 19, 2014) (citing Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 167-68 (3d Cir.

9

2001)). The employer’s actions must be serious enough that it changes the employee’s
“compensation, terms, conditions or privileges of employment” and that makes continuing
employment with the employer “so unpleasant or intolerable that a reasonable person in the
employee’s shoes would resign.” Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir.
1992) (citation omitted). A plaintiff need not demonstrate that the employer specifically
intended to force the employee to quit, only that the employer knowingly permitted the
unpleasant or intolerable discrimination. Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d
Cir. 1984).
Here, Plaintiff has demonstrated that her work environment was sufficiently unpleasant
and intolerable that a reasonable person would resign. Plaintiff has alleged that she was
repeatedly harassed, that she was grabbed, and that she was afraid while at work. Defendants did
nothing to solve the problem. Plaintiff’s allegations do not “merely detail a series of workplace
slights and petty grievances,” but rather demonstrate a workplace environment that would cause
a reasonable person to resign. We are satisfied that Plaintiff has sufficiently pled facts to support
a constructive discharge claim.
3.

Retaliation

Title VII also prevents employers from retaliating against employees for reporting
instances of sexual harassment in the workplace. Petril v. Cheyney Univ. of Pennsylvania, 789
F. Supp. 2d 574, 579 (E.D. Pa. 2011). Title VII states that an employer cannot “discriminate
against any of his employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a). In order to state a retaliation claim under Title VII, a plaintiff must

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establish that: “‘(1) she engaged in activity protected by Title VII; (2) the employer took an
adverse employment action against her; and (3) there was a causal connection between her
participation in the protected activity and the adverse employment action.’” Moore v. City of
Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383,
386 (3d Cir. 1995)). When analyzing a motion to dismiss, a court need only determine “whether
[the] plaintiff has plead ‘enough facts to raise a reasonable expectation that discovery will reveal
evidence’ of [a] plaintiff’s retaliation claim.” Standen v. Gertrude Hawk Chocolates, Inc., No.
11-1988, 2012 WL 3288916, at *8 (M.D. Pa. Aug. 10, 2012) (quoting Phillips, 515 F.3d at 234).
With regard to the first element, a plaintiff is considered to have engaged in protected
activity if the employee “opposes, or participates in a proceeding against, the employer’s
activity.” Moore, 461 F.3d at 341. A plaintiff will be considered to have engaged in protected
activity if she complains to management about discriminatory treatment. Curay-Cramer v.
Ursuline Acad. of Wilmington, Delaware, Inc., 450 F.3d 130, 135 (3d Cir. 2006). Further, the
plaintiff must reasonably believe that the employer’s activity is in violation of Title VII. Moore,
461 at 341; see also Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996)
(noting that a plaintiff “need not prove the merits of the underlying discrimination complaint, but
only that he was acting under a good faith, reasonable belief that a violation existed.” (internal
citation and quotation marks omitted)).
Here, Plaintiff reasonably believed that Defendants were required to take steps to prevent
the sexual harassment and the hostile work environment that she was exposed to as an employee.
Plaintiff demanded that Defendants take action to address the sexual harassment, and stated that
she would report the harassment to the PHRC if the harassment did not stop. (Am. Compl. ¶¶
36, 37.) Given the ongoing sexual harassment alleged in the Complaint, we are satisfied that

11

Plaintiff had a reasonable basis to believe that Defendants were violating their duties under Title
VII. Plaintiff was engaged in protected activity.
With regard to the second element, in order to allege that the retaliatory action was
materially adverse, the action must “dissuade a reasonable worker from making or supporting a
charge of discrimination.” Burlington, 548 U.S. at 57. Here, Plaintiff alleges that after reporting
the ongoing sexual harassment to Defendants on October 11, 2012, Defendant Brion stopped
speaking to Plaintiff and reduced Plaintiff’s scheduled work hours. (Am. Compl. ¶ 40.) These
actions would dissuade any reasonable worker from reporting a charge of sexual harassment.
Defendant Brion had managerial authority over Plaintiff, and it is to Plaintiff’s detriment if one
of the co-owners stops talking to her. More consequential, however, is that Defendant Brion
reduced her scheduled work hours. This would certainly dissuade a reasonable person from
reporting harassment in the future.
With regard to the third factor, a plaintiff must prove causation either through “(1) an
unusually suggestive temporal proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.”
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). The Third Circuit
has held that temporal proximity exists if a plaintiff alleges a retaliatory action that occurred
“[s]everal months after [the plaintiff’s] last protected activity.” Petril, 789 F. Supp. 2d at 581
(quoting Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997)). Here, Plaintiff
alleges that on September 21, 2012, Plaintiff wrote a letter to Defendants stating that if they did
not take action in response to the sexual harassment, she would report them to the PHRC. (Am.
Compl. ¶ 37.) On October 11, 2012, Plaintiff complained again to Defendants about the ongoing
sexual harassment. (Id. ¶ 39.) Plaintiff alleges that following her October 11 complaints

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Defendant Brion stopped talking to her and reduced her work hours. (Id. ¶ 40.) Plaintiff did not
specify the exact date when Brion took these actions, however we know that it must have been
before Plaintiff resigned on October 29. (Id. ¶ 42.) These events unfolded within a matter of
five weeks. Clearly, there is temporal proximity between Plaintiff’s protected activity and
Defendants’ actions.
Plaintiff has pled facts sufficient to state a claim under Title VII for discrimination,
constructive discharge, and retaliation. 1
B.

Defendant Co-Owners Whittacre, Harman, and Brion

Plaintiff alleges in her Complaint that the individual defendants violated Title VII and the
PHRA. As noted above, Title VII and the PHRA can be analyzed under the same standard.
However, Title VII does not apply to individual defendants. See Sheridan v. E.I. DuPont de
Nemours & Co., 100 F.3d 1061, 1077 (3d Cir. 1996) (holding that “individual employees cannot
be held liable under Title VII”); Graudins v. Retro Fitness, LLC, 921 F. Supp. 2d 456, 462 (E.D.
Pa. 2013) (holding that individuals are not liable under Title VII “even if the individuals in
question own the defendant corporation”). Defendants argue that the individual Defendants
cannot be held liable under Title VII. (Defs.’ Mot. 4.) Plaintiff agrees. (Pl.’s Resp. 3.)
Accordingly, we will dismiss Plaintiff’s Title VII claims against the individual Defendants.
Unlike Title VII, the PHRA provides for individual liability. The PHRA forbids “any
person, employer, employment agency, labor organization or employee, to aid, abet, incite,
compel or coerce the doing of any act declared by this section to be an unlawful discriminatory
practice . . . .” 43 Pa. Stat. Ann. § 955(e). Courts have held that only supervisory employees can
be held individually liable under the PHRA. See Destefano v. Henry Mitchell, No. 99-5501,
1

Since the PHRA is applied in accordance with Title VII, we find that Plaintiff has also
stated a claim under the PHRA.
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2000 WL 433993, at *2 (E.D. Pa. Apr. 13, 2000) (“Courts have distinguished between
nonsupervisory and supervisory employees and imposed liability only on the latter, on the theory
that supervisory employees can share the discriminatory intent and purpose of the employer.”
(citing Dici, 91 F.3d at 553)).
“[A]n individual supervisory employee can be held liable under an aiding and
abetting/accomplice liability theory . . . for his failure to take action to prevent further
discrimination by an employee under supervision.” Davis v. Levy, Angstreich, Finney, Baldante,
Rubenstein & Coren, P.C., 20 F. Supp. 2d 885, 887 (E.D. Pa. 1998); see also Dici, 91 F.3d at
553 (noting that a supervisory employee will be found to have aided and abetted the
discriminatory practice if he/she “knew or should have known that the [p]laintiff was being
subjected to harassment” but “repeatedly refused to take action to end the harassment directed at
[the plaintiff]” (citation and quotation marks omitted)); Carlton v. City of Philadelphia, No. 031620, 2004 WL 633279, at *8 (E.D. Pa. Mar. 30, 2004) (holding that the plaintiff’s complaint
alleged that the employees aided and abetted the discrimination because the plaintiff complained
about the harassment multiple times and was subjected to unfair retaliation).
As noted above, Defendants were co-owners of Gold Standard Café and thus qualify as
supervisory employees. Defendants concede that the PHRA provides for individual liability
against individuals. However, they argue that Plaintiff’s complaint does not allege that
Defendants aided or abetted the discrimination. (Defs.’ Mot. 5.) Plaintiff argues that she has
pled facts sufficient to show that Defendants aided and abetted the discrimination because
Defendants refused to take remedial action in response to Plaintiff’s reports of discrimination.
(Pl’s. Resp. 9.) We agree. Plaintiff alleges that she reported multiple instances where Solobino
and Velazquez sexually harassed her. While Defendants told Plaintiff that they would speak

14

with Solobino and Velazquez, when Plaintiff told Defendants that the harassment was
continuing, Defendants did not take any steps in to remedy the situation. To the contrary,
Plaintiff alleges that Defendants stopped speaking to her and told her to fix the situation on her
own. (Am. Compl. ¶¶ 40, 41.) Accordingly, we find that the individual Defendants refused to
take appropriate actions to end the harassment. Plaintiff has sufficiently stated a claim for
individual liability under the PHRA.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss will be granted in part and

denied in part.
An appropriate Order follows.
BY THE COURT:

________________________
R. BARCLAY SURRICK, J.

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