JUNGCLAUS v. WAVERLY HEIGHTS LTD et al
MEMORANDUM SIGNED BY HONORABLE ROBERT F. KELLY ON 4/9/18. 4/9/18 ENTERED AND COPIES E-MAILED. (va, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KATHLEEN M. JUNGCLAUS,
WAVERLY HEIGHTS, LTD., THOMAS P.
GARVIN, and JOHN and JANE DOES
ROBERT F. KELLY, Sr. J.
APRIL 9, 2018
Plaintiff Kathleen Jungclaus (“Ms. Jungclaus”) filed suit in this Court on October 6,
2017, against Defendants Waverly Heights, LTD. (“Waverly Heights”) and Thomas Garvin
(“Mr. Garvin”). On November 17, 2017, Ms. Jungclaus filed an Amended Complaint that added
twenty-one unnamed members of the Board of Directors of Waverly Heights (“the Board” or
“Board Members”) as additional defendants (collectively, “Defendants”). In Counts I through
IV of her Amended Complaint, Ms. Jungclaus claims violations of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000 et seq., the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. §§ 621 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons.
Stat. §§ 951–63 against Waverly Heights. In Count V, Ms. Jungclaus asserts claims for
Defamation against Waverly Heights, Mr. Garvin, and the Board. In Count VI, Ms. Jungclaus
asserts a claim for Negligent Supervision of Mr. Garvin against Waverly Heights and the Board.
Presently before the Court is Defendants’ Motion to Dismiss Counts V and VI of
Plaintiff’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and Ms.
Jungclaus’ Memorandum of Law in Opposition. For the reasons noted below, Defendants’
Motion is granted.
Waverly Heights is a senior living facility in Gladwyne, Pennsylvania. (Am. Compl.
¶¶ 3, 12.) Ms. Jungclaus served as Waverly Heights’ Director/Vice President for Human
Resources from 1997 to 2016. (Id. ¶ 10.) Ms. Jungclaus earned a degree in Psychology from
Gwynedd Mercy College and had worked in social and human services for ten years before
taking the position at Waverly Heights. (Id.) During her time at Waverly Heights, Ms.
Jungclaus reported directly to Mr. Garvin, the Chief Executive Officer. (Id. ¶ 4.)
Ms. Jungclaus asserts that, in her capacity as Director/Vice President for Human
Resources, she was occasionally at odds with Mr. Garvin over his “tendencies and direction” not
to “provide fair and equitable treatment to all employees regardless of their race, gender, or
sexual orientation.” (Id. ¶ 13.) She routinely protested “various discriminatory and questionable
practices employed by Mr. Garvin” and the Waverly Heights Board Members. (Id. ¶ 14.) Ms.
Jungclaus cites numerous instances of discriminatory, sexually abusive, and racist behavior that
occurred at Waverly Heights. (Id. ¶¶ 45–60.) While these allegations may relate to Ms.
Jungclaus’ other claims, they are not pertinent to the Motion at bar, therefore, we will not
address them in detail at this time.
Ms. Jungclaus was ultimately fired from Waverly Heights on September 27, 2016, for an
alleged violation of the company’s social media policy. Ms. Jungclaus asserts this was a
“dummied-up claim” and was used as pretense to justify her unlawful, discriminatory firing. (Id.
¶¶ 60–62.) According to Ms. Jungclaus, on September 20, 2016, she was called into Mr.
We take the facts alleged in the Amended Complaint as true, as we must when deciding a motion under Federal
Rule of Civil Procedure 12(b)(6). See Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (citation
Garvin’s office. (Id. ¶ 16.) Mr. Garvin proceeded to explain that he had received an
“anonymous letter” concerning a tweet Ms. Jungclaus had sent from her personal Twitter
account on July 24, 2016. (Id.) The tweet said:
@realdonaldtrump I am the VP of HR in a comp[any] outside of
Philly[. A]n informal survey of our employees shows 100% AA
employees Voting Trump! 2
(Am. Compl. ¶ 17; Defs.’ Mem. Law in Supp. 2.) It is commonly known that
“@realdonaldtrump” is the official Twitter account used by President Donald J. Trump, then a
candidate for President in the 2016 Presidential Election. Mr. Garvin told Ms. Jungclaus that the
tweet was a “mere nuisance” and that she need not worry about being fired. (Id. ¶ 18.)
However, the following week, Ms. Jungclaus was again called into Mr. Garvin’s office.
There, she met with Mr. Garvin and the Chairman of the Board, Mr. Dick Bauer. (Id. ¶ 20.) Mr.
Garvin informed Ms. Jungclaus that she was being fired for violating Waverly Heights’ social
media policy and that the Board had voted unanimously in favor of her termination. (Id. ¶ 21.)
Mr. Garvin then allegedly told Ms. Jungclaus, “I don’t want you to think that we think you are a
racist. That’s not the case.” (Id. ¶ 25.) Ms. Jungclaus was accompanied by two individuals to
her office to pack her personal items and was then escorted from the premises. (Id. ¶ 26.)
Ms. Jungclaus claims, in the following days, Mr. Garvin proceeded to defame her and
place her in a false light by telling the Waverly Heights Senior Leadership Team, other Waverly
Heights employees, outside contractors, and the residents of Waverly Heights that “she was fired
for violating the Social Media Policy.” (Id. ¶¶ 27–32.) Ms. Jungclaus cites the following
incidents as proof of such defamation: a phone call from a former co-worker saying she heard
There is a slight discrepancy between the Amended Complaint and Defendants’ Motion to Dismiss regarding the
actual punctuation and grammar of the tweet. (Compare Am. Compl. ¶ 17 with Defs. Mem. Law in Supp. 2.)
According to Ms. Jungclaus, the original tweet has since been deleted. (Am. Compl. ¶ 19.) Therefore, we have
inserted alterations where appropriate for the sake of clarity and a lack of social media grammatical conventions.
Ms. Jungclaus “was fired for violating Waverly’s Social Media Policy”; a phone call from her
former boss that “he had heard that she was fired for violating Waverly’s Social Media Policy”; a
memorandum addressed to “Our Valued Residents” written by Mr. Garvin that informed the
residents of Waverly Heights of Ms. Jungclaus’ “departure from employment at Waverly”; and a
phone call from a “housekeeping employee . . . who said she heard [Ms. Jungclaus] was fired for
a ‘bad post on Facebook [sic] . . . .’” (Id. ¶¶ 29–32.)
Additionally, Waverly Heights contested Ms. Jungclaus’ application for unemployment
compensation before the Unemployment Compensation Board of Review and on appeal before
the Commonwealth Court. (Id. ¶ 36.) Ms. Jungclaus claims that, during these unemployment
compensation proceedings, Waverly Heights’ lawyer incorporated defamatory falsehoods in
several filings. (Id. ¶ 37.)
Ms. Jungclaus brought suit in this Court on October 6, 2017. Count V of her Amended
Complaint alleges claims of Defamation against Mr. Garvin, Waverly Heights, and the Board for
Defamation. (Id. ¶¶ 99–109.) Count VI alleges claims of Negligent Supervision against
Waverly Heights and the Board for allowing Mr. Garvin to “engage in the conduct” alleged,
mainly creating a “hostile and discriminatory environment” for Ms. Jungclaus that ultimately led
to her termination. (Id. ¶¶ 63, 110–13.) Defendants’ move to dismiss the Defamation count for
failure to state a claim and seek to dismiss the Negligent Supervision count on the basis that such
common law claims are preempted by the PHRA.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency
of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). “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, 679 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). In deciding a
motion to dismiss under Rule 12(b)(6), courts must “accept as true all allegations in the
complaint and all reasonable inferences that can be drawn from them after construing them in the
light most favorable to the non-movant.” Davis v. Wells Fargo, 824 F.3d 333, 341 (3d Cir.
2016) (quoting Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014))
(internal quotation marks omitted). However, courts need not “accept mere conclusory factual
allegations or legal assertions.” In re Asbestos Prods. Liab. Litig. (No. VI), 822 F.3d 125, 133
(3d Cir. 2016) (citing Iqbal, 556 U.S. at 678–79). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Twombly, 550 U.S. at 555.
Finally, we may consider “only the complaint, exhibits attached to the complaint, matters of
public record, as well as undisputedly authentic documents if the complainant’s claims are based
upon [those] documents.” Davis, 824 F.3d at 341 (quoting Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010)) (internal quotation marks omitted).
Defendants seek dismissal of Ms. Jungclaus’ claims of Defamation and Negligent
Supervision. We will first address her claim of Defamation and will then discuss any claims of
Under Pennsylvania law, defamation is the “tort of detracting from a person’s reputation
or injuring a person’s character by false and malicious statements.” Patel v. Patel, No. 14-2949,
2015 WL 6735958, at *4 (E.D. Pa. Nov. 11, 2015) (citing Zartman v. Lehigh Cnty. Humane
Soc’y, 482 A.2d 266, 268 (Pa. Super. Ct. 1984)) (Kelly, J.). There are seven elements of
defamation under Pennsylvania law: (1) the defamatory character of the communication; (2) its
publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the
recipient of its defamatory meaning; (5) the understanding by the recipient of the intention to be
applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7)
abuse of a conditionally privileged occasion. Banka v. Columbia Broad. Co., 63 F. Supp. 3d
501, 506–07 (E.D. Pa. 2014) (citing 42 Pa. Cons. Stat. § 8434(a)). In cases where special
damages cannot be shown, courts have created an exception for statements considered
defamation per se. Patel, 2015 WL 6735958, at *5. Defamation per se encompasses statements
concerning four categories: (1) a criminal offense; (2) a loathsome disease; (3) business
misconduct; or (4) serious sexual misconduct. Id.
In the present case, Ms. Jungclaus attempts to assert several instances of defamatory
statements made against her by Mr. Garvin, Waverly Heights, or the Board. She alleges that
defamation occurred in conversations between Mr. Garvin and the Board regarding her July 2016
tweet. (Am. Compl. ¶ 34.) She also claims that defamatory statements were made to Waverly
Heights’ employees, residents, and third-party contractors. (Id. ¶¶ 27–32.) And, finally, she
asserts that defamatory statements were made during the course of proceedings in front of the
Unemployment Compensation Board of Review. (Id. ¶ 37.) Only from one of these instances,
the conversations between Mr. Garvin and the Board, does Ms. Jungclaus claim any special harm
arose — her termination. Therefore, we will review that claim under the standard for
defamation, while the remaining claims must meet the exception for defamation per se.
Conversations between Mr. Garvin and the Board
Ms. Jungclaus asserts very limited facts regarding any conversations between Mr. Garvin
and the Board, including during a Board Meeting that took place between September 20-27,
2016. Since the statute of limitations for defamation under Pennsylvania law is one year,
anything said during this time period or meeting is time-barred. See 42 Pa. Cons. Stat. §
5523(1). Ms. Jungclaus agrees that because she did not file her case until October 6, 2017, that
any statements made during that meeting may be time-barred, however, she believes they are
relevant to show the “prevailing environment . . . and intent of those who made allegedly
defamatory comments after [the filing date].” (Pl.’s Mem. Law in Opp’n 15.)
What, exactly, Ms. Jungclaus believes to be relevant is unclear, as she does not provide
any information regarding what was said in that meeting. According to Ms. Jungclaus, after her
September 20, 2016 meeting with Mr. Garvin, Mr. Garvin “was very upset by [her tweet] and
decided to take it to the Board’s Human Resources Committee.” (Am. Compl. ¶ 21.) The
committee, and later the Board as a whole, decided her tweet was a violation of the social media
policy and voted unanimously in favor of Ms. Jungclaus’ termination. (Id.) Ms. Jungclaus was
informed of that decision on September 27, 2016. (Id.)
Ms. Jungclaus fails to assert that any defamatory statements were made during these
conversations or that any of the elements of defamation were met. Rather, the facts, as stated
and for the purposes of this section only, show the following: an employee engaged in behavior
that potentially violated a company policy; her supervisor brought the behavior to the attention
of, what was in effect, a disciplinary committee; and that committee then determined that a
negative employment action against the employee was appropriate. Simply because a meeting
was held that determined Ms. Jungclaus should be fired, does not mean that she was defamed
during that meeting. Without more, we cannot determine whether defamation has occurred. Ms.
Jungclaus has failed to allege any facts that show she was defamed at any time leading up to her
termination. Fired employees may not bring defamation suits against former employers on the
factually conclusory grounds that something defamatory must have been said that resulted in
their termination. See In re Asbestos Prods, 822 F.3d at 133 (citing Iqbal, 556 U.S. at 678–79).
Statements Made to Employees, Residents, and Third-Parties
Ms. Jungclaus cites multiple examples of Defendants supposedly defaming her to
employees, residents, and contractors. (Id. ¶¶ 29–32.) Ms. Jungclaus does not claim any special
damages arose from these statements. Therefore, they must meet one of the four categories of
defamation per se. In particular, we will focus on whether any statement concerns business
misconduct on the part of Ms. Jungclaus, as she alleges. (Pl.’s Mem. Law in Opp’n 11.)
“A statement is considered defamation per se relating to business misconduct when the
‘speaker imputes to another conduct, characteristics, or a condition that would adversely affect
[plaintiff in her] lawful business or trade.’” Patel, 2015 WL 6735958, at *5 (quoting Walker v.
Grand Cent. Sanitation, Inc., 634 A.2d 237, 241 (Pa. Super. Ct. 1993)) (alteration in original).
Typically, business misconduct refers to conduct that is illegal or connotes illegal activity. See
Restatement (Second) of Torts § 573 (Am. Law Inst. 1977); see also Patel, 2015 WL 6735958,
at *6 (finding statements regarding stolen funds, thuggish behavior, and prior arrests met
defamation per se where character traits, such as honesty, loyalty, and integrity were important
business criteria); Agriss v. Roadway Exp., Inc., 483 A.2d 456 (Pa. Super. Ct. 1984) (finding
charge of “opening company mail” to be understood as unfitness for business and possible
criminal activity). “The statement must be ‘peculiarly harmful to one engaged in [that] business
or profession.’” Patel, 2015 WL 6735958, at *6 (quoting Clemente v. Espinosa, 749 F. Supp.
672, 677 (E.D. Pa. 1990)) (alteration in original). Typically, disparaging someone’s character
would not be considered defamation per se, unless that trait is “peculiarly valuable in [that]
business or profession.” Id.
The United States District Court of the Southern District of New York considered two
factors in deciding whether a statement against one’s character could establish defamation per se.
See Korry v. Int’l Tele. & Tele. Corp., 444 F. Supp. 193, 196 (S.D.N.Y. 1978). In Korry, a
former diplomat and journalist was accused of being a “communist.” Id. at 195. First, the court
examined the career status of the plaintiff and found that, because he was no longer pursuing a
career in diplomacy, the “statement cannot have impugned him in that career.” Id. at 196. Then,
the court looked at the nature of the term, itself, and decided that the “communist” label was no
longer “laden with emotion” in “today’s more relaxed atmosphere.” Id.
Ms. Jungclaus claims that Defendants repeatedly characterized her “and her tweet as
being racist” to others. (Am. Compl. ¶ 102.) A favorable reading of the facts pleaded allows us
to infer that Ms. Jungclaus is still pursuing a career in human resources and is, therefore,
susceptible to attacks on her character. Additionally, we also find that the term “racist” still has
a deplorable connotation in American culture and that no reasonable person would wish to be
described as such. Thus, a charge of racism would be considered disparaging to Ms. Jungclaus’
character and adversely affect her ability to do business in human resources.
However, nowhere in Ms. Jungclaus’ Amended Complaint does she actually assert a
single instance of anyone calling her a racist or saying that she was fired for being a racist. 3 Ms.
Jungclaus relies on several instances of Defendants “defaming her and placing her in a false
Ms. Jungclaus asserts that, upon being told she was fired on September 27, 2016, Mr. Garvin said, “I don’t want
you to think that we think you are a racist. That’s not the case.” (Am. Compl. ¶ 25.) Ms. Jungclaus relies on this
particular statement throughout much of her Amended Complaint as somehow implying Defendants’ did believe she
was a racist. (See generally Am. Compl.) Ms. Jungclaus provides no facts showing that Mr. Garvin lied when he
made that statement. As for Mr. Garvin’s statement, itself, it certainly does not meet any of the requirements for
defamation. Furthermore, it is time-barred because Ms. Jungclaus did not bring suit in this Court until October 6,
2017, after the one-year statute of limitations had run. See 42 Pa. Cons. Stat. § 5523(1). Therefore, Ms. Jungclaus
cannot be successful on her claim for Defamation with regards to this statement.
light.” 4 (Id. ¶ 27.) According to Ms. Jungclaus’ Amended Complaint, this “campaign of
defamation” consisted only of disseminating to others “that she was fired for violating the Social
Media Policy.” (Id. ¶ 27.) Ms. Jungclaus notes conversations that she had with former coworkers, a former boss, and Waverly Heights staff that all say they heard she was fired for
“violating the Social Media Policy.” (Id. ¶¶ 27–32.) It is unclear whether Ms. Jungclaus
believes the mere fact that Defendants made statements that she was fired for violating the social
media policy constitutes defamation per se or whether the nature of her violation implies that she
is a racist.
We find neither theory compelling. First, violating a social media policy does not reach
the level of business misconduct needed to sustain a claim of defamation per se. We are unsure,
and Ms. Jungclaus provides no reasoning, how a violation of the social media policy is the type
of conduct that would adversely affect Ms. Jungclaus in the business of human resources. See
Patel, 2015 WL 6735958, at *5.
Second, we are equally, if not more, perplexed by Ms. Jungclaus’ theory that a statement
noting that she was fired for “a violation of the social media policy” can imply that she is a
racist. According to Ms. Jungclaus, she engaged in political speech by sending a “pro-Trump”
tweet. (Am. Compl. ¶¶ 1, 38.) Then, after being fired for her tweet, Defendants made
statements saying that she was fired for violating the social media policy. (Id. ¶¶ 29–32.) Even
though she does not plead that people were told about the contents or the nature of her tweet, Ms.
Jungclaus appears to be implying that by sending a “pro-Trump” tweet, she is perceived as a
Ms. Jungclaus also asserts that on the day she was fired, she was escorted off the premises “by two individuals in
plain view of Waverly staff and residents.” (Am. Compl. ¶ 26.) Citing Byars v. Sch. Dist. of Phila., Ms. Jungclaus
claims this act constituted a defamatory communication under Pennsylvania law. 942 F. Supp. 2d 552, 564–65
(E.D. Pa. 2013) (holding that claim of being escorted out of building “in the presence of others . . . sufficiently
alleged a defamatory communication as well as publication to others.”) However, by Ms. Jungclaus’ own
admission, this occurred on September 27, 2016. She did not bring suit in this Court until October 6, 2017, after the
one-year statute of limitations had run. Therefore, this claim is dismissed as untimely. See 42 Pa. Cons. Stat.
racist. Ms. Jungclaus offers no explanation for why she believes that a “pro-Trump” tweet
would equate to an act of racism. Therefore, claims for this theory of defamation are dismissed.
Statements Made During the Course of a Judicial Proceeding
Ms. Jungclaus alleges that, upon information and belief, Defendants made defamatory
statements about her to the “Waverly Heights’s lawyer.” (Id. ¶ 37.) In turn, even though this
lawyer is not a named defendant in this action, he or she, “apparently without exercising
independent judgment,” published those defamatory remarks into filings before the
Unemployment Compensation Board of Review while contesting Ms. Jungclaus’ claim for
unemployment compensation. (Id.) Ms. Jungclaus calls this a “chain of defamation.” (Id.)
Defendants argue that “statements made during the course of judicial proceedings are
absolutely privileged when it comes to defamation, whether they occur in open court or in the
pleadings.” (Defs.’ Mem. Law in Supp. 11 (citing Binder v. Triangle Pubs., Inc., 275 A.2d 53,
56 (Pa. 1971); Greenberg v. McGraw, 161 A.3d 976, 981 (Pa. Super. Ct. 2017)).) This principle
is generally understood as true and Ms. Jungclaus admits herself that “indeed, there is an
absolute privilege for proceedings.” (Pl.’s Mem. Law in Opp’n 13.)
Defendants’ needlessly cite a Chester County Court of Common Pleas case, Bochetto v.
Gibson, that found judicial privilege extended to a communication with a newspaper reporter.
(Defs.’ Mem. Law in Supp. 12 (citing No. 3722, 2002 WL 434551 (C.P. Chester Cty. 2002)).)
On appeal, the Supreme Court of Pennsylvania ultimately reversed the decision regarding the
narrow issue that sending a copy of the complaint to the reporter was not protected by judicial
privilege. See Bochetto v. Gibson, 860 A.2d 67 (Pa. 2004) (finding the transmission “was an
extrajudicial act that occurred outside of the regular course of the judicial proceedings and was
not relevant in any way to those proceedings [and] was not protected by the judicial privilege”).
Though Ms. Jungclaus argues that this mistake is fatal to Defendants’ Motion, the Bochetto court
still recognized that judicial privilege applies to “communications which are issued in the
regular course of judicial proceedings and which are pertinent and material to the redress or
relief sought.” Id. (quoting Post v. Mendel, 507 A.2d 351, 355 (Pa. 1986)) (emphasis in
Notably, Ms. Jungclaus never asserts any instance, in either her Amended Complaint or
Memorandum of Law in Opposition, of an extra-judicial statement by Defendants, or
Defendants’ counsel, that would not be protected by judicial privilege. Ms. Jungclaus merely
“doubts that the defamatory communications were limited as solely between attorney and client.”
(Am. Compl. ¶ 37.) Since she has not identified any statement made by Defendants that meet
any of the elements of defamation, she cannot sustain a claim of Defamation here. As with the
rest of Ms. Jungclaus’ claims for Defamation, this is merely a “conclusory factual assertion” that
we need not accept as true and to which no relief is available. See In re Asbestos Prods., 822
F.3d at 133 (citing Iqbal, 556 U.S. at 678–79).
Plaintiff’s Right to Amend Complaint
We now must decide whether Ms. Jungclaus should be given leave to amend her
Amended Complaint with respect to her claim for Defamation. According to Federal Rule of
Civil Procedure 15, “a party may amend its pleading once as a matter of course”; otherwise they
must have consent from the opposing party or leave from the court. Fed. R. Civ. P. 15(b). Leave
to amend shall be freely given. Id. However, the United States Court of Appeals for the Third
Circuit (“Third Circuit”) has held that the District Court may deny an opportunity to amend
where the amendment would be futile. See Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000)
(citing Smith v. NCAA, 139 F.3d 180, 190 (3d Cir. 1998), rev’d on other grounds, 525 U.S. 459
(1999); Centifanti v. Nix, 865 F.2d 1422, 1431 (3d Cir. 1989)). “An amendment is futile if the
amended complaint would not survive a motion to dismiss for failure to state a claim upon which
relief could be granted.” Id. at 121. In deciding this issue, the District Court “applies the same
standard of legal sufficiency as under [Federal Rule of Civil Procedure] 12(b)(6).” See Smith,
139 F.3d at 190 (citing In re Burlington Coat Factory, 114 F.3d 1410, 1434 (3d Cir. 1997)).
Ms. Jungclaus has not requested leave to amend or supplied a proposed amendment;
therefore, it would not be an abuse of discretion to deny her the opportunity to amend. See U.S.
ex rel. Zizic v. Q2Administrators, LLC, 728 F.3d 228, 243 (3d Cir. 2013) (holding District Court
did not abuse discretion when plaintiff failed to properly move for leave to amend or attach a
draft amended complaint). Regardless, it is readily apparent that any amendment would be
futile. Ms. Jungclaus’ Amended Complaint makes clear on its face that any claim made during
the board meeting in question would be time-barred. Further, any statements made by
Defendants, or their counsel, during the judicial proceedings before the Unemployment
Compensation Board of Review are privileged. And, finally, all statements made to third parties
do not assert or meet the necessary elements for defamation. See Morrison v. Chatham Univ.,
No. 16-476, 2016 WL 4701460, at *4 (W.D. Pa Sept. 8, 2016) (dismissing defamation claim
with prejudice where amended complaint showed defamatory statements were facially true).
The Defamation claims alleged in Ms. Jungclaus’ Amended Complaint are inherently deficient
and cannot survive a motion to dismiss. See In re Burlington, 114 F.3d at 1435. Accordingly,
we see no need to allow Ms. Jungclaus leave to amend her complaint a second time.
Therefore, Defendants’ Motion to Dismiss is granted as it relates to Count V of the
Amended Complaint. Ms. Jungclaus’ claim for Defamation is dismissed from the Amended
Complaint with prejudice.
Defendants also move to dismiss Count VI of Ms. Jungclaus’ Amended Complaint for
Negligent Supervision against Waverly Heights and the Board under Federal Rule of Civil
Procedure 12(b)(6). Defendants argue negligent supervision cannot apply against the Board and
that any claim for negligent supervision against Waverly Heights is preempted by the PHRA.
(Defs.’ Mem. Law in Supp. 15–17.)
The Third Circuit has defined negligent supervision as a state tort claim “where the
employer fails to exercise ordinary care to prevent an intentional harm to a third party which (1)
is committed on the employer’s premises by an employee acting outside the scope of his
employment and (2) is reasonably foreseeable.” Petruska v. Gannon Univ., 462 F.3d 294, 309
n.14 (3d Cir. 2006) (quoting Mullen v. Topper’s Salon & Health Spa, Inc., 99 F. Supp. 2d 553,
556 (E.D. Pa. 2000)). For an act to be reasonably foreseeable, an employer must have known or
should have known “of the necessity for exercising control of its employee” and that “the harm
that the improperly supervised employee caused to the third party must also have been
reasonably foreseeable.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 491 (3d Cir. 2013)
(citing Petruska, 462 F.3d at 309 n.14; Devon IT, Inc. v. IBM Corp., 805 F. Supp. 2d 110, 132
(E.D. Pa. 2011); Restatement (Second) of Agency § 213 (Am. Law Inst. 1958); Restatement
(Second) of Torts § 317 (Am. Law Inst. 1975)).
However, “negligent supervision claims arising out of discrimination cases . . . must be
brought under the [PHRA].” Randler v. Kountry Kraft Kitchens, No. 11-474, 2012 WL
6561510, at *14 (M.D. Pa. Dec. 17, 2012). Where a statute already “provides a legal remedy,
Pennsylvania courts will not recognize a common law cause of action.” Murray v. Commercial
Union Ins. Co., 782, F.2d 432, 436–37 (3d Cir. 1986) (citing Bruffett v. Warner Commc’ns, Inc.,
692 F.2d 910, 919 (3d Cir. 1982); Wolk v. Saks Fifth Ave., Inc., 728 F.2d 221, 223–24 (3d Cir.
1984)). Bruffett and Wolk both held that cases involving public policy implications surrounding
employment termination based on a disability or sexual discrimination fall under actions
governed by the PHRA. Id. (noting Bonham v. Dresser Industries, Inc., 569 F.2d 187, 195 (3d
Cir. 1977) concluded age discrimination was also covered by the PHRA). In creating this
“Bruffett-Wolk prediction,” the Third Circuit noted that the “PHRA condemns so many
employment practices that few tort actions for wrongful discharges that violate public policy will
stand.” Id. The Third Circuit decided this was the “probable approach of the Pennsylvania
legislature,” otherwise “a common law action for the same claims would give the claimant an
opportunity to circumvent the carefully drafted legislative procedures.” Id.
Ms. Jungclaus claims, in Count VI of her Amended Complaint, that “Defendants
Waverly [Heights] and [the Board] were negligent in their supervision of [Mr.] Garvin, thereby
allowing him to engage in the conduct as heretofore alleged.” (Am. Compl. ¶ 111.) Though
vague, we understand the alleged conduct to be a “discriminatory environment directed at
women” that ultimately resulted in Ms. Jungclaus’ termination and defaming Ms. Jungclaus as a
“racist.” (Id. ¶¶ 62–63.) Since we dismissed the defamation claims above, all that remains is
Ms. Jungclaus’ claims of discrimination and retaliation. Defendants, therefore, argue that Ms.
Jungclaus’ claim for “negligent supervision sounds in allegedly discriminatory actions and
inactions [and] is preempted by the PHRA.” (Defs.’ Mem. Law in Supp. 17.)
Ms. Jungclaus argues that a “common law claim will not be preempted by the PHRA if it
is factually independent of the discrimination.” (Pl.’s Mem. Law in Opp’n 20 (quoting Keck v.
Commercial Union Ins. Co., 758 F. Supp. 1034, 1038 (M.D. Pa. 1991)).) In Keck, the court
found that where “plaintiff’s tort claims were procedurally and functionally independent of her . .
. discrimination claims, [they are] not preempted and need not be adjudicated within the
framework of the PHRA.” Keck, 758 F. Supp. at 1038. The court provided an example that
where “an employer effected all the elements of intentional infliction of emotional distress upon
an employee, and chose to do so because the employee was black, the employer may be found
liable for discrimination as well as intentional infliction of emotional distress.” Id. (citing
Schweitzer v. Rockwell Int’l, 586 A.2d 383 (Pa. 1990) (“[N]othing in the intent of the Legislature
or in the language of the Act forbids independent legal actions based upon the underlying acts”);
Clay v. Advanced Comput. Applications, 559 A.2d 917 (Pa. 1989) (describing “other remedies”
available to wrongfully terminated employees to include those not superseded by PHRA)).
Ms. Jungclaus, however, misinterprets the meaning of “factually independent.” In
countering Defendants’ argument that the underlying facts of this case fall under the PHRA
claim, Ms. Jungclaus states, “[t]o the contrary, the factual support for the various counts is found
in the body of pleading that precedes the counts.” (Pl.’s Mem. Law in Opp’n 20.) She seems to
be arguing that because she physically wrote the Amended Complaint with a general “Factual
Assertions” section, the facts are, therefore, independent from the PHRA claim. (Id. (“[T]he
body of fact pleading is anything but co-terminous [sic] with the discrimination claims.”))
This is clearly incorrect. In Keck, the court proffered the following:
[T]he general rule that has emerged . . . is simply that if all or part
of the facts that would give rise to a discrimination claim would
also independently support a common law claim, the common law
claim is not preempted by the PHRA and need not be adjudicated
within its framework. If, however, the act that would support the
common law claim is only an act of discrimination, the claim is
preempted by and must be adjudicated within the framework of the
758 F. Supp. at 1039. This rule makes no reference to where in the pleadings the facts are
established. Rather, it requires us to look at whether the facts themselves can support a common
law claim separate from a claim for discrimination.
In Ms. Jungclaus’ case, they do not. Since we have already dismissed the defamation
claim, Ms. Jungclaus’ only remaining claims arise from discrimination. Ms. Jungclaus’ claim
for Negligent Supervision is based on the “hostile and discriminatory environment towards
women” that was allowed to exist at Waverly Heights. (Am. Compl. ¶¶ 62, 111.) Ms. Jungclaus
pleads no other independent cause of action nor do the facts support one that is not based in
Ms. Jungclaus also argues that she is allowed to plead alternate theories of liability. (Id.)
Relying on Randler, Ms. Jungclaus argues that she must be afforded discovery in order to
determine which cause of action to pursue. (Pl.’s Mem. Law in Opp’n 21.) Ms. Jungclaus,
ironically, confuses Randler v. Kountry Kraft, Inc., No. 11-474, 2011 WL 5040787 (M.D. Pa.
Oct. 24, 2011) (hereinafter “Randler (2011)”) (deciding defendant’s partial motion to dismiss)
with Randler v. Kountry Kraft, Inc., No. 11-474, 2012 WL 6561510 (M.D. Pa. Dec. 17, 2012)
(hereinafter “Randler (2012)”) (deciding defendant’s motion for partial summary judgment and
plaintiff’s cross-motion for summary judgment). Ms. Jungclaus claims Randler (2012) allowed a
party to join a claim for Negligent Supervision and the PHRA by citing Federal Rules of Civil
Procedure 8(d)(3) and 18. (Id.) This is wrong. The plaintiff in Randler (2011) argued that the
Federal Rules of Civil Procedure allowed her to assert both a claim under the PHRA and a claim
for Negligent Supervision. Randler (2011), 2011 WL 5040787, at *3 (“[Plaintiff] contends . . .
that at the pleading stage it is appropriate to plead alternative counts and that only through
discovery can she determine which claim is better suited for recovery.”) However, the court
dismissed that argument because the plaintiff “clearly invoked the PHRA by explicitly pleading
it in her complaint.” Id. (“[T]he issue here is preemption, not inconsistent or alternative
claims.”) The court granted plaintiff leave to amend her complaint “to assert her negligent
supervision claim and drop her PHRA claim.” Id.
In Randler (2012), plaintiff appeared to have dropped her PHRA claim and proceeded
only under a claim of Negligent Supervision. However, the court found that “it is firmly
established that negligent supervision claims arising out of discrimination cases situated in the
Commonwealth of Pennsylvania must be brought under the [PHRA].” Randler (2012), 2012
WL 5040787, at *14. The court further stated, “[Plaintiff’s] failure to invoke her rights under the
PHRA does not allow her to circumvent its statutory framework and, thus, bring a common law
tort cause of action.” Id. (quoting Wolk, 728 F.2d at 224 (“The procedures mandated in the
PHRA must be strictly followed. If common law action for the same claims were recognized, it
would give the claimant an opportunity to circumvent the carefully drafted legislative
procedures. The PHRA embodies a discrete, comprehensive administrative procedure, including
conciliation and negotiation.”)) Thus, neither Randler (2011) nor Randler (2012) allow
discovery in order to “determine which cause of action to pursue.” (Contra Pl.’s Mem. Law in
Opp’n 21.) Ms. Jungclaus’ claim for Negligent Supervision is clearly preempted by the PHRA. 5
For the above reasons, Defendants’ Motion to Dismiss is granted as it relates to Count VI
of the Amended Complaint. Ms. Jungclaus’ claim for Negligent Supervision is dismissed from
the Amended Complaint with prejudice.
Since the claim of Negligent Supervision is preempted by the PHRA, we need not address whether such a claim
may be brought against a Board of Directors.
For the reasons set forth above, Defendants’ Motion to Dismiss Counts V and VI of
Plaintiff’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) is granted.
An appropriate Order follows.
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