"DOE" v. WM OPERATING, LLC et al

Filing 38

MEMORANDUM. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 8/7/2017. 8/7/2017 ENTERED AND COPIES E-MAILED.(ahf)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRANK “DOE”

:
:
v.
:
:
WM OPERATING, LLC d/b/a/
:
MEADOWVIEW REHABILITATION AND :
NURSING CENTER, et al.
:
O’NEILL, J.

CIVIL ACTION
NO. 17-2204

August 7, 2017
MEMORANDUM

Plaintiff Frank “Doe” 1 brings claims of sex discrimination against his former supervisor
and three companies that he argues were his co-employers under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000(e) et seq., the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. §
951 et seq. and various local ordinances and the New York State Human Rights Law, N.Y. Exec.
Law § 296. He alleges that, upon discovering he was gay, his supervisor mocked him by calling
him by a woman’s name in a high-pitched voice and then, after several months, fired him on
false pretenses. Defendants move to dismiss.
I will deny defendants’ motions in most respects: I find that plaintiff states a viable claim
of sex-stereotyping under Title VII; I also find that plaintiff is entitled to discovery with respect
to which company or companies acted as his employer and which local jurisdiction encompasses
the nursing home. I will, however, dismiss plaintiff’s claims under the New York State Human
Rights Law, as plaintiff does not allege that any relevant conduct occurred in New York.

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Plaintiff has filed a motion to proceed anonymously in order to keep private the fact that
he is gay.

BACKGROUND
This case arises from defendant John Chapman’s repeated mocking of plaintiff Frank
“Doe,” an employee under his supervision. Plaintiff began working as an activities director for
the Meadowview Rehabilitation and Nursing Center, a nursing home in Pennsylvania, in May
2015. Compl. ¶ 47. In February the following year, the nursing home hired Chapman. Id. ¶¶
49, 50. Around that time, two of plaintiff’s coworkers warned him that he should not “act gay”
around Chapman, one of them telling him to “turn down the gay.” Id. ¶¶ 51, 52.
Chapman nonetheless “discovered [plaintiff] was gay in February 2016” and “repeatedly
mocked [him] by referring to him by the female name, ‘Frances,’ instead of [plaintiff’s] real
name, ‘Frank’” with a high-pitched, effeminate intonation. Id. ¶¶ 53, 54. Plaintiff repeatedly
told Chapman to stop, but he did not. Id. ¶ 55.
Around May 2016, Chapman asked plaintiff privately whether plaintiff thought Chapman
did not like him. Id. ¶ 57. Plaintiff “responded that he believed Mr. Chapman had a problem
with gay people in general. Mr. Chapman raised his hand in the air, dropped it in his lap and
said, ‘Frances!’ in a high-pitched, dramatic fashion.” Id. After this conversation, Chapman did
not stop mocking plaintiff by calling him “Frances,” and did so in front of his coworkers to
embarrass him. Id. ¶¶ 58, 59.
On September 22, 2016, Chapman told plaintiff that he had seen him sleeping during a
staff meeting the day before, and fired him. Id. ¶¶ 60, 61. This was an “exaggerated and
completely fabricated reason” that Chapman allegedly used as a pretext to fire plaintiff. Id. ¶ 66.
Meadowview did not offer plaintiff the progressive discipline it routinely offered its other
employees, which would have required a verbal warning, four written warnings and then
suspension before termination. Id. ¶ 63. Plaintiff also alleges he was “qualified for the position,

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satisfactorily performed in the position for 1 year and 4 months before he was terminated, and
was an enthusiastic employee who was beloved by the Meadowview residents and patients he
served.” Id. ¶ 88.
Plaintiff has exhausted his administrative remedies with the Equal Employment
Opportunity Commission and now brings this lawsuit against Chapman, WM Operating, LLC
doing business as Meadowview Rehabilitation and Nursing Center, Premier Healthcare
Management, LLC, which plaintiff alleges owns Meadowview, and the two companies listed on
his paycheck—Rest Haven Care Corp., doing business as Rest Haven-Whitemarsh Nursing
Center, and Rest Haven Nursing Center (Whitemarsh), Inc.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action
for “failure to state a claim upon which relief can be granted.” Typically, “a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” though
plaintiff’s obligation to state the grounds of entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise
a right to relief above the speculative level . . . on the assumption that all of the allegations in the
complaint are true (even if doubtful in fact).” Id. (citations omitted). A well-pleaded complaint
may not be dismissed simply because “it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely.” Id. at 556. However, a complaint
must provide “enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence of” the necessary element. Id. at 556. In reviewing a complaint on a motion to dismiss,
“the factual and legal elements of a claim should be separated,” and while all well-pleaded facts

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should be accepted as true, the court “may disregard any legal conclusions.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
DISCUSSION
I.

Discrimination and Retaliation under Title VII and the PHRA
Plaintiff brings claims for discrimination and retaliation under Title VII and the PHRA.

Because these two statutes are interpreted coextensively, my discussion of Title VII below
applies equally to the PHRA. Fogleman v. Mercy Hosp., 283 F.3d 561, 567 (3d Cir. 2002)
(“[T]he PHRA is to be interpreted as identical to federal anti-discrimination laws except where
there is something specifically different in its language requiring that it be treated differently.”).
I will deny defendants’ motions with respect to both his discrimination and retaliation claims.
A.

Discrimination Based on Sex

Defendants argue that plaintiff’s claim for wrongful discharge and hostile work
environment under Title VII should be dismissed because he alleges discrimination on the basis
of sexual orientation only, not on the basis that his conduct did not conform to stereotypes of
masculinity. Because I find, however, that plaintiff describes himself as the victim of
antagonistic treatment due to his perceived effeminate behavior, rather than as a result of his
sexual orientation alone, I will deny the motion to dismiss plaintiff’s discrimination claims.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating
“because of” a person’s “race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e2(a). Discrimination because of sex includes discrimination on the basis of a person’s failure to
conform to stereotypes associated with his or her sex. Prowel v. Wise Bus. Forms, Inc., 579 F.3d
285, 289–92 (3d Cir. 2009), citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989).

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Although the Court of Appeals has held that Title VII does not prohibit discrimination based on
sexual orientation alone, Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir.
2001), a plaintiff can state a Title VII claim if he alleges that he was discriminated against
because a supervisor perceived that he defied sex stereotypes, even if he also alleges that he was
discriminated against for being gay. Prowel, 579 F.3d at 291.
It is not a bar to a sex discrimination claim that the supervisor associated the plaintiff’s
behavior with being gay as well as with defying sex stereotypes. In Prowel v. Wise Business
Forms, Inc., the Court of Appeals reversed the district court’s grant of summary judgment for the
defendant on the plaintiff’s sex discrimination claim. Id. The Court relied on the plaintiff’s
evidence that, in addition to being discriminated against for being gay, he was also discriminated
against because he had a high voice, did not curse, was “well-groomed,” wore “dressy clothes,”
was neat, filed his nails, crossed his legs “the way a woman would sit,” walked and carried
himself in an effeminate manner, drove a clean car, talked about art, music, and interior design
and moved with “pizzazz.” Id. at 287. Thus, under Prowel, Title VII’s prohibition on sex
discrimination covers harassment for an employee’s nonconformity with sex stereotypes, as
distinct from his nonconformity with attitudes about sexual orientation. Id. at 289–90; see also
Ellingsworth v. Hartford Fire Ins. Co., No. 16-3187, 2017 U.S. Dist. LEXIS 42061 (E.D. Pa.
2017) (holding that plaintiff alleged a Title VII claim for sex discrimination where she alleged
“she was harassed because of her masculine—according to [her supervisor]—tattoo, how she
dressed, how she looked, and how she presented herself as a woman”); Burnett v. Union R.R.
Co., No. 17-101, 2017 U.S. Dist. LEXIS 97825 at *10–12 (W.D. Pa. June 26, 2017) (holding
that the plaintiff stated a claim under Title VII because he alleged he was “harassed for not
performing stereotypical male behavior”).

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Plaintiff has sufficiently alleged that he was discriminated against because Chapman
perceived that he did not conform to Chapman’s expectations of what is masculine. According
to the complaint, Chapman apparently found plaintiff to be effeminate, using both a female
name, “Frances,” to refer mockingly to plaintiff, and a feminine, high-pitched voice when
referring to him by this name. Plaintiff shows that Chapman harassed and, ultimately, fired
plaintiff because of his failure to conform to sex stereotypes.
Although plaintiff does not allege that he actually acted effeminately, the absence of such
an allegation does not doom his claim. Rather, he must merely show that he was perceived to be
a member of a protected category. Price Waterhouse, 490 U.S. at 258 (“It is not our job to
review the evidence and decide that the negative reactions to [the plaintiff] were based on reality;
our perception of [the plaintiff’s] character is irrelevant.” The issue is rather “whether the [hiring
partners who employed her] reacted negatively to her personality because she is a woman.”).
Plaintiff’s complaint sufficiently alleges that Chapman perceived him to be effeminate.
Therefore, I will not dismiss plaintiff’s claims for sex discrimination based on a hostile
work environment and wrongful discharge on this basis.
B.

Retaliation

Plaintiff also states a claim under Title VII for retaliation.
To establish a prima facie case of retaliation under Title VII, a
plaintiff must tender evidence 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 Phila., 461 F.3d 331, 340–41 (3d Cir. 2006).
Plaintiff sets forth sufficient facts to satisfy the first two elements of his prima facie case.
First, he alleges that he engaged in a protected activity by repeatedly asking Chapman to stop

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harassing him, thereby opposing Chapman’s unlawfully hostile conduct. Compl. ¶ 55. 2 Second,
it is clear that Meadowview took an adverse employment action against plaintiff when it fired
him in September 2016.
Plaintiff has also satisfied the third element by showing a causal connection between his
participation in the protected activity and the adverse action. To allege a causal connection, a
plaintiff must describe facts showing that the harm would not have occurred in the absence of the
plaintiff’s protected activity. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525–34
(2013). A plaintiff can show a causal connection in myriad ways, including temporal proximity
between the employee’s protected activity and the alleged retaliatory action, a pattern of
antagonism following the protected conduct and preceding the adverse employment action, an
employer’s providing inconsistent reasons for terminating the employee, or other circumstantial
evidence that supports the inference. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280–81
(3d Cir. 2000).
Plaintiff has alleged sufficient facts to show a causal connection between his opposition
to Chapman’s harassment and his termination. Although he was not terminated until several
months after he asked Chapman to stop harassing him, he alleged continued harassment in the
interim, that he was fired on false pretenses and that he was not given the progressive discipline
given to other employees. These allegations are sufficient at this stage to survive a motion to
dismiss on his retaliation claim.

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The parties do not discuss this basis for plaintiff’s retaliation claim. Rather, plaintiff
states that he was fired “in retaliation for his protected conduct of complaining about/opposing
Mr. Chapman’s dislike of gay people in or around May 2016.” Id. ¶ 107. If this were the only
allegation that he engaged in an activity protected by Title VII, I would be faced with a challenge
to the controlling precedent in Bibby that sexual orientation discrimination is not protected under
Title VII. 260 F.3d at 261. However, plaintiff also alleges that he repeatedly asked Chapman to
stop harassing him—activity that is protected under Prowel. 579 F.3d at 289–92.
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II.

Springfield Township Ordinance
Plaintiff also brings a claim under the Springfield Township Human Relations Ordinance

(Counts VIII and IX), which prohibits employment discrimination on the basis of an individual’s
sexual orientation. Defendants argue this claim should be dismissed as untimely because a
complaint alleging violations of the Ordinance “must be received by the Township within 180
days of the occurrence of the last act giving rise to the complaint, or such complaint shall be
dismissed as untimely.” Springfield Township Human Relations Ordinance, § 47-1 et seq., Dkt.
No. 20, Ex. 9. Springfield Township did not receive plaintiff’s complaint until 214 days after the
last act. Dkt. No. 20, Ex. 10 (Letter from Donald E. Berger, Jr., Township Manager, to Justin F.
Robinette, May 12, 2017). 3 Plaintiff argues his tardiness should be excused because he timely
asserted his rights mistakenly in Philadelphia and Whitemarsh before learning that the
Meadowview nursing home was in fact located in Springfield. I agree. Plaintiff has pleaded
adequate grounds to find that equitable tolling applies to his claim such that it should not be
dismissed as untimely.
“[E]quitable tolling is proper only when the principles of equity would make the rigid
application of a limitation period unfair. This unfairness generally occurs when the petitioner
has in some extraordinary way been prevented from asserting his or her rights.” Jones v.
Morton, 195 F.3d 153, 159 (3d Cir. 1999) (internal quotation marks, citations and alterations

3

I take judicial notice of the date of plaintiff’s filing of the complaint with Springfield
Township, as such information is readily determinable from the Township’s records. A fact is
subject to judicial notice, and therefore can be considered on a motion to dismiss, if it “is not
subject to reasonable dispute because it . . . can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b); Feingold v.
Graff, 516 F. App’x 223, 225 (3d Cir. 2013). Courts will generally take judicial notice of
governmental records. Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d
156, 166 (S.D.N.Y. 2015) (explaining that courts “routinely take judicial notice of . . .
governmental records”).
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omitted). Equitable tolling “may be appropriate if . . . the plaintiff has timely asserted his rights
mistakenly in the wrong forum.” Id. But he or she “must show that he or she exercised
reasonable diligence in investigating and bringing the claims. Mere excusable neglect is not
sufficient.” Id. (internal quotations, citations, and alterations omitted). Although, “[a]s a general
matter, the filing of an action in a court that clearly lacks jurisdiction will not toll the statute of
limitations,” where “the lack of jurisdiction in the state court was far from clear” equitable
tolling may be appropriate. Walck v. Discavage, 741 F. Supp. 88, 91 (E.D. Pa. 1990) (applying
equitable tolling to the plaintiff’s claims when she filed in the wrong forum because the claims
were based on injuries on a boat near the Delaware-Maryland border); see also Jurbala v. United
States, No. 14-1238, 2015 U.S. Dist. LEXIS 33878 at *21 (M.D. Pa. 2015); Flores v. Predco
Servs. Corp., No. 10-1320, 2011 U.S. Dist. LEXIS 83443 at *22–26 (D.N.J. 2011). Plaintiff
bears the burden of showing that equitable tolling is warranted. Podobnik v. U.S. Postal Serv.,
409 F.3d 584, 591 (3d Cir. 2005).
Plaintiff’s complaint shows that he exercised reasonable diligence in investigating and
bringing his claims and that he mistakenly brought them in the wrong forum due to the difficulty
of ascertaining the appropriate jurisdiction. Meadowview is located on or very close to the
Philadelphia-Montgomery County line. Compl. ¶ 10. Meadowview has a Philadelphia address
and has asserted in state filings that it is in Philadelphia. Id. ¶¶ 4, 5, 10, 13. As plaintiff’s
counsel explains, plaintiff first filed with the City of Philadelphia Commission on Human
Relations within about one month of his termination. Id. ¶ 7. After filing, he twice requested
defendants’ answer before the statute of limitations tolled. Id. ¶¶ 10–11. Defendants, however,
did not contest the Philadelphia commission’s jurisdiction until several months later, having
obtained an extension for filing their answer. Id. ¶¶ 9–14. Defendants asserted that

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Meadowview is located in Whitemarsh Township. Id. ¶ 14. A few weeks later, plaintiff’s
counsel filed a complaint with the Whitemarsh Township Human Relations Commission, but
was told by the Township’s Solicitor that Meadowview was not in Whitemarsh. Id. ¶ 15. A
week later, plaintiff’s counsel filed a complaint in Springfield Township. Id. ¶ 16.
These allegations show that plaintiff was diligent in bringing his claims but thwarted on
several occasions by circumstances beyond his control. He has established, on the face of the
complaint, that equitable tolling is appropriate. Therefore, I will not dismiss his claim under the
Springfield Township Human Relations Ordinance.
III.

Philadelphia and Whitemarsh Ordinances
Plaintiff also brings sexual orientation discrimination claims under the Philadelphia Fair

Practices Ordinance (Counts IV and V) and the Whitemarsh Township Human Relations
Ordinance (Counts VI and VII). The Philadelphia Ordinance only covers conduct that took place
in the City of Philadelphia. Phila. Code § 9-1100; PCHR Guide to Discrimination Complaints,
2. The Whitemarsh Ordinance covers any employer “within the jurisdiction of the Township [of
Whitemarsh, Montgomery County, Pennsylvania].” Whitemarsh Human Relations Ordinance
No. 911, Dkt. No. 20, Ex. 8. Defendants argue that plaintiff cannot state a claim under the
ordinances because the nursing home where plaintiff worked was in neither the city of
Philadelphia nor Whitemarsh Township, but in Montgomery County. However, I will decline to
take judicial notice of the nursing home’s location without the benefit of discovery.
In general, a district court ruling on a motion to dismiss may not consider matters
extraneous to the pleadings. It may, however, consider “a document integral to or explicitly
relied upon in the complaint,” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir. 1997), where it is “undisputedly authentic.” In re Donald J. Trump Casino Sec. Litig., 7

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F.3d 357, 368 n.9 (3d Cir. 1993); see also Feingold v. Graff, 516 F. App’x 223, 225 (3d Cir.
2013) (holding that, on a motion to dismiss, a court may consider a fact that is subject to judicial
notice under Rule 201(b) of the Federal Rules of Evidence—i.e., “a fact that is not subject to
reasonable dispute because it . . . can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned”). Although some courts have taken judicial notice of
deeds, they typically take notice only of the deed’s existence, not its contents. See, e.g., Lee v.
Thornburg Mortg. Home Loans Inc., No. 14-602, 2014 U.S. Dist. LEXIS 137758, at *11 (N.D.
Cal. Sep. 29, 2014); see also Doss v. Clearwater Title Co., 551 F.3d 634, 639 (7th Cir. 2008).
It remains “subject to reasonable dispute” that the entire nursing home property is located
within Springfield Township. The parties’ motions rely extensively on evidence extraneous to
the pleadings. Most persuasively, defendants submit the deed of the Meadowview Nursing
Home, which states that the property is in Springfield Township, Montgomery County. See Dkt.
No. 20, Ex. 2. On a motion to dismiss, however, there is no assurance that this information is
complete. Therefore, I will allow discovery with respect to Meadowview’s location.
IV.

Employment Relationship with Premier and the Rest Haven Defendants
Plaintiff brings all of his claims against both Premier Healthcare Management, LLC, the

company that he alleges owns Meadowview and the Rest Haven defendants—Rest Haven Care
Corp., doing business as Rest Haven-Whitemarsh Nursing Center, and Rest Haven Nursing
Center (Whitemarsh), Inc. The companies argue that plaintiff fails to allege an employment
relationship with them. I disagree.

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In order to establish a Title VII claim for employment discrimination, 4 plaintiff must
show that he was in an “employment relationship” with the defendant. Faush v. Tuesday
Morning, Inc., 808 F.3d 208, 212 (3d Cir. 2015). An employment relationship exists where the
hiring party has the “right to control the manner and means by which the product is
accomplished.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992); Faush, 808 F.3d
at 213 (“Because Title VII’s definition of ‘employee’ is . . . devoid of content, the common-law
test outlined in Darden” determines its meaning). The right to control can be shown based on the
a long list of nonexclusive factors, including “whether the work is part of the regular business of
the hiring party,” “whether the hiring party has the right to assign additional projects to the hired
party,” “the provision of employee benefits,” “the extent of the hired party’s discretion over
when and how long to work” and “the tax treatment of the hired party.” Darden, 503 U.S. at
323–24. Who had the authority to hire and fire the worker is also relevant. Faush, 808 F.3d at
214. Each of these factors must be weighed; there is “no shorthand formula or magic phrase that
can be applied to find the answer.” Id. Additionally, the inquiry is not comparative between two
possible employers—“[t]wo entities may be ‘co-employers’ or ‘joint employers’ of one
employee for purposes of Title VII” if they both meet the common law standard. Id. at 215.
Taking all of plaintiff’s allegations as true, I hold that he has alleged facts satisfying
enough of the Darden factors to show an employment relationship with both Premier and the
Rest Haven Defendants.
A.

Premier

Plaintiff alleges that Premier owns and operates six nursing and rehabilitation facilities,
Meadowview among them, showing that the work plaintiff did was in Premier’s “regular
4

Neither plaintiff nor the defendants argue that the law with respect to this issue is
different under the relevant state and county laws and ordinances.
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business.” Compl. ¶¶ 7, 33. Premier also “operates a website for ‘Meadowview Rehabilitation
and Nursing Center.” Id. ¶ 31. Plaintiff alleges that his tax treatment suggests Premier
employed him: while his W2 stated that his employer was Rest Haven, the address and principal
place of business was 199 Community Drive, Great Neck, NY 11021, which is Premier’s
address. Id. ¶¶ 19, 29, 30.
Additionally, Premier hired all Meadowview workers. Id. ¶ 31 (quoting the employee
handbook, which states, “No representative of Meadowview, other than the CEO of Premier
Healthcare Management, LLC, has the authority to enter into any agreement providing
employment for a specific duration or to make any agreement contrary to this section of the
handbook”). It also oversaw any disagreements about reasonable disability accommodations for
employees. Id. ¶ 32. Plaintiff’s employee handbook also references Premier Healthcare
Management. Dkt. No. 33, Ex. I. 5 Finally, the CEO of Premier Healthcare Management
registered the fictitious name, Meadowview Rehabilitation and Nursing Center, with the
Pennsylvania Department of State. Id. ¶¶ 5, 6. Thus, the use of the Meadowview name in other
areas could refer to Premier Healthcare.
Although, as Premier points out, plaintiff does not provide allegations with respect to
several of the Darden factors, he need not do so in order to allege an employment relationship.
While Premier contends that it is a “management company” and that “the Complaint makes it
clear that Premier’s regular business was solely administrative management,” Dkt. No. 25 at 12,
I would have to stray from the standard for a motion to dismiss to conclude from plaintiff’s

5

I may consider “a document integral to or explicitly relied upon in the complaint,” In re
Burlington Coat Factory Sec. Litig., 114 F.3d at 1426, where it is “undisputedly authentic.” In re
Donald J. Trump Casino Sec. Litig., 7 F.3d at 368. Though plaintiff only attaches the handbook
as an exhibit in his response to defendants’ motions to dismiss, he relies on it in his complaint
and defendants do not dispute its authenticity.
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complaint that Premier was solely involved in upper-level management and in no way controlled
the manner in which plaintiff performed his work. Plaintiff has pleaded “enough fact[s] to raise
a reasonable expectation that discovery will reveal evidence of” an employment relationship
between himself and Premier. Twombly, 550 U.S. at 556. Therefore, I will not dismiss the
claims against Premier at this stage.
B.

The Rest Haven Defendants

The Rest Haven defendants argue that they did not employ plaintiff during the relevant
time period because they sold the nursing home before Chapman was hired and thus before the
alleged misconduct began. This argument would be more appropriate after discovery with
respect to Meadowview’s sale and Chapman’s hiring.
For the purposes of this motion, I must accept all of the following allegations as true: the
employer name listed on plaintiff’s paycheck at all times relevant to this action was “Rest Haven
Nursing Center (Whitemarsh), Inc.,” Compl. ¶ 19; and “Rest Haven Care Corp., made hiring
decisions including hiring the Plaintiff, promulgated work rules, was responsible for addressing
discrimination and harassment complaints, set conditions of employment, and was responsible
for day-to-day supervision.” Id. ¶ 39.
The Rest Haven defendants argue in their motion to dismiss that they sold the nursing
home on February 1, 2016. They cite the Medicare.gov website, Dkt. No. 29, Ex. A, and an
agreement showing that WM Operating leases the nursing home’s premises. Id., Ex. B. The
Rest Haven defendants contend these are public records of which the court may take judicial
notice.

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Taking judicial notice of this information, 6 I find that it does not conclusively establish
that the Rest Haven defendants ceased employing plaintiff before any misconduct occurred. It
shows merely that they did not own Meadowview. As recognized in Darden, many factors
determine the existence of an employment relationship. Additionally, the information does not
show whether it was the Rest Haven defendants or defendant WM Operating that hired Mr.
Chapman in February 2016, the same month of the supposed sale. Compl. ¶ 49. Therefore, I
will not dismiss the claims against the Rest Haven defendants, but rather will allow for discovery
regarding whether Rest Haven hired Chapman and employed plaintiff during the relevant time.
V.

New York State Human Rights Law
The defendants move to dismiss plaintiff’s claims under the New York State Human

Rights Law (Count X and XI). The New York Human Rights Law prohibits any employer from
discriminating based on sexual orientation. N.Y. Exec. Law § 296. Meadowview argues that
these claims should be dismissed because Meadowview is not located in New York. Plaintiff
responds that he has alleged that WM Operating, LLC’s corporate address is in New York, as
listed on Plaintiff’s W2 statement. Dkt. No. 24, Ex. AA; Compl. ¶ 29. Regardless of

6

A fact is subject to judicial notice, and therefore can be considered on a motion to
dismiss, if it “is not subject to reasonable dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
201(b); Feingold v. Graff, 516 F. App’x 223, 225 (3d Cir. 2013). Courts will generally take
judicial notice of governmental records. Wells Fargo Bank, N.A. v. Wrights Mill Holdings,
LLC, 127 F. Supp. 3d 156, 166 (S.D.N.Y. 2015) (explaining that it was “clearly proper to take
judicial notice” of documents retrieved from Medicare.gov and other state sites, explaining that
courts “routinely take judicial notice of such governmental records”); see also Daniels-Hall v.
Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (taking judicial notice of a list of approved
vendors on a school district website); Laborers’ Pension Fund v. Blackmore Sewer Constr., Inc.,
298 F.3d 600, 607 (7th Cir. 2002) (taking judicial notice that one bank is a branch office of
another bank). I will therefore take judicial notice of the fact that WM Holdings, LLC has
owned one hundred percent of Meadowview Rehabilitation and Nursing Center since February
1, 2016, as stated in the Medicare.gov record attached to defendants’ motion to dismiss, Dkt. No.
29, Ex. A.
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defendant’s corporate address, however, plaintiff has not stated a claim under the New York
State Human Rights Law because he does not allege that any relevant conduct occurred in New
York.
New York courts generally hold that laws regulating conduct only apply to conduct that
occurs within the state. Cooney v. Osgood Mach., Inc., 612 N.E.2d 277, 282 (N.Y. 1993)
(explaining that “the traditional rule of lex loci delicti almost invariably obtains” with respect to
conduct-regulating laws). Thus, for laws regulating the way employers treat their employees,
courts have applied the law of the state where the plaintiff was employed and fired, rather than
the law of the state where the employer-corporation was headquartered. See, e.g., Duffy v.
Drake Beam Morin, No. 96-5606 (MBM), 1998 U.S. Dist. LEXIS 7215, at *37 (S.D.N.Y. May
15, 1998) (explaining that “even if the decision to fire” the plaintiff was made at the defendant’s
New York City headquarters, “that fact is insufficient to establish a violation of the State Human
Rights Law”); Littman v. Firestone Tire & Rubber Co., 709 F. Supp. 461, 469 (S.D.N.Y. 1989)
(applying New Jersey law where the plaintiff was an employee and informed of his discharge in
New Jersey).
The only connections to New York that plaintiff sets forth are the corporate addresses of
defendants Premier Healthcare Management and WM Operating, LLC. He does not claim that
any offending conduct occurred in New York, but rather alleges he worked exclusively in
Pennsylvania, the harassment occurred in Pennsylvania and he was fired in Pennsylvania.
Therefore, he cannot state a claim under a law that regulates conduct in New York. I will
dismiss these claims.

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CONCLUSION
In light of the preceding discussion, I find that plaintiff has stated claims under Title VII,
the PHRA and the local ordinances against defendants Chapman, WM Operating, LLC, Premier
and the Rest Haven defendants. His claims under the New York Human Rights Law, however,
will be dismissed for failure to set forth any New York based conduct.
An appropriate Order follows.

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