RESETAR v. PHILLIPS FEED SERVICE, INC.
MEMORANDUM. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 3/22/2017. 3/23/2017 ENTERED AND COPIES E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILLIPS FEED SERVICE, INC.,
March 22, 2017
In this employment discrimination case, the plaintiff alleges she was sexually
harassed by her boss’s wife, who was also an employee at the same company. The
defendant filed a motion to dismiss. I will deny the motion.
The plaintiff, Tracy Resetar, was employed as an Executive Administrator at
Phillips Feed Service, Inc. in Easton, Pennsylvania. (Doc. No. 7 ¶ 12). She worked at
Phillips Feed for thirteen years up until the date she was fired. (Id. ¶ 11) As an Executive
Administrator, Ms. Resetar reported directly to Phillips Feed’s CEO: Mr. Blaine Phillips.
(Id. ¶ 12). Mr. Phillips’s wife worked as the company’s Chief Marketing Officer
(“CMO”). (Id. ¶ 15). 1
The amended complaint does not identify the CMO by her name. Therefore, she is
referred to as “the CMO” throughout this opinion.
In November 2012, after Ms. Resetar underwent breast augmentation surgery, the
CMO began sexually harassing her. (Id. ¶¶ 13, 20). The CMO made Ms. Resetar follow a
“strict” dress code, but the CMO was allowed to wear clothes that did not comply with
this dress code and that were “exceptionally revealing.” (Id. ¶ 15). The CMO would
repeatedly boast that she was “probably in violation of the dress code, but who’s going to
say anything to me about it?” (Id. ¶ 18). The CMO would send home other women, to
change their outfits, if they were not in compliance with the dress code. (Id. ¶ 17).
According to Ms. Resetar, defendant’s CMO would continually tell Ms. Resetar
that she (the CMO) had “all the power.” (Id. ¶ 19). The CMO would stare at Ms.
Resetar’s breasts and body, something she did not do to male employees. (Id. ¶ 23). This
made Ms. Resetar afraid the CMO sexually desired her or was jealous of her. (Id. ¶ 24). It
also made Ms. Resetar fear the CMO was going to touch her breasts. (Id.). The CMO
would also tell Ms. Resetar: “I have the perfect size boobs for my body.” (Id. ¶ 22).
Based on the CMO’s comments and behavior, male employees at Phillips Feed told Ms.
Resetar that they thought the CMO was going to touch Ms. Resetar’s breasts. (Id. ¶ 26).
On one occasion, the CMO made Ms. Resetar pick up luggage from hers and Mr.
Phillips’s home, knowing that the luggage was directly next to “a basket filled with the
[CMO]’s lingerie.” (Id. ¶ 30).
Ms. Resetar also alleges the CMO would make comments about her husband, Mr.
Phillips. For example, the CMO made degrading remarks about Mr. Phillips’s children.
(Id. ¶¶ 27–28). The CMO also commented that her husband, Mr. Phillips, had “chicken
arms.” (Id. ¶ 29).
The CMO had no direct line of supervision over Ms. Resetar. (Id. ¶ 32). However,
the CMO was still successful in taking away some of Ms. Resetar’s job duties in an effort
to force Ms. Resetar to resign. (Id.). Ms. Resetar contends that the CMO was fixated on
Ms. Resetar’s physical looks, which made Ms. Resetar extremely uncomfortable. (Id. ¶¶
Ms. Resetar never complained about the CMO’s conduct. (Id. ¶ 35). Ms. Resetar
never complained because she had been told by the CMO that she (the CMO) had “all the
power,” implying that if Ms. Resetar complained then she would be fired. (Id.). On
September 24, 2014, defendant fired Ms. Resetar. (Id. ¶ 36). Defendant refused to
provide Ms. Resetar, despite her requests, with any explanation of why she was being
fired. (Id. ¶ 37). The CMO was directly involved in the decision to terminate Ms. Resetar.
(Id. ¶ 38).
In December 2014, Ms. Resetar filed an administrative Charge of Discrimination
against defendant Phillips Feed. (Id. ¶¶ 8–9). This Charge was jointly filed with the Equal
Employment Opportunity Commission (“EEOC”) and Pennsylvania Human Relations
Commission (“PHRC”). (Id.). After receiving a right to sue letter from the EEOC, Ms.
Resetar commenced this action against Phillips Feed, alleging sexual harassment and
discrimination claims under Title VII of the Civil Rights Act (Title VII) and the
Pennsylvania Human Relations Act (PHRA).
Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the
plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6);
see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court recognized
that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555. Subsequently, in Ashcroft v. Iqbal, 556 U.S. 662
(2009), the Supreme Court defined a two-pronged approach to a court’s review of a
motion to dismiss. “First, the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. at 678. Thus, while “Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era . . . it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79.
Second, the Supreme Court emphasized that “only a complaint that states a
plausible claim for relief survives a motion to dismiss.” Id. at 679. “Determining whether
a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Id. A complaint does not show an entitlement to relief when the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct. Id.; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232–34 (3d Cir.
2008) (holding that: (1) factual allegations of complaint must provide notice to defendant;
(2) complaint must allege facts suggestive of the proscribed conduct; and (3) the
complaint’s “‘factual allegations must be enough to raise a right to relief above the
speculative level.’” (quoting Twombly, 550 U.S. at 555)).
The basic tenets of the Rule 12(b)(6) standard of review have remained static.
Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626, 2008 WL 2779079, at *2
(W.D. Pa. July 15, 2008). The general rules of pleading still require only a short and
plain statement of the claim showing that the pleader is entitled to relief and need not
contain detailed factual allegations. Phillips, 515 F.3d at 233. Further, the court must
“accept all factual allegations in the complaint as true and view them in the light most
favorable to the plaintiff.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.
2006). Finally, the court must “determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Pinkerton v. Roche Holdings Ltd., 292
F.3d 361, 374 n.7 (3d Cir. 2002).
Ms. Resetar brings two claims under Title VII: (1) same-sex sexual harassment;
and (2) gender discrimination. 2
Same-Sex Sexual Harassment Claim
Ms. Resetar claims defendant is liable for same-sex sexual harassment in violation
of Title VII. 3
Ms. Resetar brings a separate claim under the PHRA for sexual harassment and
discrimination. This claim is based upon the same conduct that supports her Title VII claims.
Ms. Resetar’s sexual harassment claim is one for hostile work environment. A hostile
work environment claims is a type of sexual harassment claim that can be brought under Title
VII. Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999).
To make out a prima facie case for hostile work environment, the plaintiff must
ultimately prove: (1) she suffered intentional discrimination because of her sex, (2) the
discrimination was pervasive or severe, (3) the discrimination detrimentally affected her,
(4) the discrimination would detrimentally affect a reasonable person of the same sex in
that position, and (5) respondeat superior liability existed. Mandel v. M & Q Packaging
Corp., 706 F.3d 157, 167 (3d Cir. 2013). Defendant’s motion to dismiss challenges Ms.
Resetar’s claim at the first and second prima facie elements.
Because of Sex
Defendant argues plaintiff’s hostile work environment claim fails because she
cannot establish that the harassment she endured was “because of her sex.” Id. I disagree.
Because Ms. Resetar’s alleged harasser—the defendant’s CMO—is female, her
claim is governed by the standards for same-sex harassment claims set forth in Bibby v.
Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001). In Bibby, the U.S.
Court of Appeals for the Third Circuit held that “there are at least three ways by which a
plaintiff alleging same-sex sexual harassment might” satisfy the first prong of a hostile
work environment claim—that the harassment was “because of sex.” 260 F.3d at 264.
These three avenues are: (1) the alleged harasser sexually desired the victim, (2) the
harasser expressed general hostility toward the presence of one sex in the workplace, or
(3) the harasser was acting to punish the victim’s failure to comply with gender
stereotypes. Bibby, 260 F.3d at 264. 4
Aside from these three methods of proof, the Third Circuit made clear that “[b]ased on
the facts of a particular case and the creativity of the parties, other ways in which to prove that
Here, the amended complaint states sufficient facts to satisfy the first prong of a
same-sex harassment claim. It avers that the alleged harasser, also the wife of defendant’s
CEO, stared at Ms. Resetar’s breasts on a daily basis for years. It also states the CMO
selectively enforced a strict dress code for women, but not men. According to the
amended complaint, the CMO would not adhere to this dress code, but would send other
women home who failed to comply with it. As the CEO’s wife, the CMO would tell Ms.
Resetar that she had “all the power,” and that she had perfectly sized breasts for her body.
These comments were made soon after Ms. Resetar underwent breast augmentation
surgery. The amended complaint further states that Ms. Resetar was fired and that the
CMO was directly involved in the decision to fire her. Before being fired, the CMO took
away several job duties from Ms. Resetar.
The CMO’s selective enforcement of a female-only dress policy shows a general
hostility toward women in the workplace. Bibby, 260 F.3d at 264. More specifically, it
shows hostility toward Ms. Resetar specifically because Ms. Resetar is a woman. The
CMO’s daily staring at Ms. Resetar’s breasts could also show that the CMO sexually
desired Ms. Resetar, which is sufficient proof of the first prong under Bibby. Id.
Ms. Resetar worked directly for the CMO’s husband. This further supports Ms.
Resetar’s claim that the CMO was hostile toward her. It is clear from the amended
complaint that the CMO would not have treated Ms. Resetar like she did if Ms. Resetar
harassment occurred because of sex may be available.” Bibby, 260 F.3d at 264 (citing Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81 (1998)).
were a man. Notably, the CMO displayed none of the above hostility toward men. All of
this conduct satisfies the first prong of a same-sex harassment claim under Bibby.
Severe or Pervasive
Defendant also argues Ms. Resetar’s harassment claim must be dismissed because
the alleged conduct was not “severe or pervasive” enough to create a hostile work
environment. I disagree.
In order to make out the second element of a prima facie hostile work environment
claim, the plaintiff must establish that the discriminatory conduct was “severe or
pervasive.” Mandel, 706 F.3d at 168. Courts look to the totality of the circumstances in
deciding whether alleged discriminatory conduct is severe or pervasive. Id. (citing Harris
v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). In doing so, courts consider the
discriminatory conduct’s: (i) frequency; (ii) severity; (iii) whether it is physically
threatening or humiliating, or a mere offensive utterance; and (iv) whether it
unreasonably interferes with the plaintiff’s performance at work. Id.; see also Caver v.
City of Trenton, 420 F.3d 243, 262–63 (3d Cir. 2005) (“[A] discrimination analysis must
concentrate not on individual incidents, but on the overall scenario.”). Title VII does not
create a “general civility code,” Oncale, 523 U.S. at 80, and as such, “[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). The work environment complained of must be
“objectively” hostile, meaning it is “an environment that a reasonable person would find
hostile or abusive.” Harris, 510 U.S. at 21.
The conduct alleged in the amended complaint is sufficiently severe or pervasive.
As for the “frequency” of the conduct, Mandel, 706 F.3d at 168, Ms. Resetar claims the
CMO harassed her every single day from November 2012 through September 2014
(nearly two years). Such frequency is probative of severity and pervasiveness. E.g.,
Mertig v. Milliken & Michaels of Del., Inc., 923 F. Supp. 636, 646 (D. Del. 1996)
(finding vulgar comments made “very often” or “daily,” over a one-year period,
sufficiently severe or pervasive to survive a motion for summary judgment). Several male
employees were so concerned about the harassment that they told Ms. Resetar they
thought the CMO was going to physically grab her. This buttresses Ms. Resetar’s claim
that the conduct was “objectively” abusive, Harris, 510 U.S. at 21, because people other
than Ms. Resetar herself recognized the CMO’s conduct as abusive.
The CMO’s repeated statement to Ms. Resetar—that she had “all the power”—
could obviously be viewed as threatening. The CMO’s harassment interfered with Ms.
Resetar’s work performance in that the CMO deprived her of several job duties, allegedly
in an attempt to force Ms. Resetar to resign. Taking all these allegations as true, and
viewing them together, I find that the amended complaint sets forth sufficiently severe or
Defendant urges me to dismiss this claim pursuant to Rule 12(b)(6) for failure to
state a claim. In support of this argument, defendant cites to a string of eight district court
cases. However, seven out of these eight cases addressed motions for summary
judgment—not motions to dismiss. (Doc. No. 8-1 at 4–5). A determination that there is
no genuine dispute of fact as to the severity or pervasiveness of conduct is different than
merely deciding whether discriminatory conduct plausibly states a claim for relief.
Contrary to defendant’s argument, Betz v. Temple Health Systems, Civ. A. No.
15–cv–727, 2015 WL 4713661 (E.D. Pa. Aug. 7, 2015) does not help its cause. In Betz,
the district court granted a defendant’s motion to dismiss a female plaintiff’s hostile work
environment claim. 2015 WL 4713661, at *4. There, the plaintiff alleged that her female
co-workers were engaging in “sexually explicit behavior that she found offensive and
refused to participate in.” Betz, 2015 WL 4713661, at *4. 5 Unlike the sexual conduct in
Betz, which was not personally directed at the plaintiff, here Ms. Resetar alleges the
CMO specifically targeted her. For instance, the CMO would stare at Ms. Resetar’s
breasts and make sexually offensive and threatening comments to Ms. Resetar. The CMO
was also directly involved in firing Ms. Resetar and, before doing so, she altered Ms.
Resetar’s job duties. I am satisfied, at this stage of the litigation, that these facts, viewed
as true, rise to the level of severe or pervasive conduct.
For all the foregoing reasons, I will deny defendant’s motion to dismiss Ms.
Resetar’s same-sex harassment claim.
Gender Discrimination Claim
Ms. Resetar claims defendant is also liable for gender discrimination in violation
of Title VII.
Betz’s female co-workers would pretend to grope each other and kiss each other. Betz,
2015 WL 4713661, at *1. They would also make sexually explicit and lewd jokes amongst each
To make out a prima facie case for gender discrimination under Title VII, Ms.
Resetar must show that: (1) she is a member of a protected class, (2) she was qualified for
the position, (3) she suffered an adverse employment action, and (4) members of the
opposite sex were treated more favorably. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d
Cir. 2013) (citing Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)).
This fourth element does not require the plaintiff to prove that she was “replaced by
someone outside the protected class.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 n.7
(3d Cir. 2003). The ultimate focus, in assessing a prima facie gender discrimination case,
is whether the plaintiff was being treated “less favorably than other because of [her] . . .
sex.” Id. at 798 (quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 244, 352 (3d Cir.
Defendant argues Ms. Resetar’s gender discrimination claim should be dismissed
because the amended complaint does not allege she was replaced by a male employee or
that she was treated less favorably because of her sex.
Contrary to defendant’s position, the amended complaint contains sufficient
factual information to plausibly demonstrate that Ms. Resetar was treated less favorably
because she is a woman. Simply put, the amended complaint shows that—if Ms. Resetar
were a man—she would not have been terminated. As a woman, Ms. Resetar was subject
to a strict dress code policy that did not apply to male employees. The amended
complaint also supports an inference that Ms. Resetar was terminated because she is a
woman, in that, the CMO was jealous of Ms. Resetar’s proximity to her husband. Cf.
Lococo v. Barger, 958 F. Supp. 290, 296–97 (E.D. Ky. 1997) (denying summary
judgment on female plaintiff’s gender discrimination claim—that she was fired because
her male supervisor’s wife was jealous of her—because the issue of whether the
termination was based on “gender” or “personal reasons” was a genuine dispute of
material fact), aff’d, 234 F.3d 1268 (Table), 2000 WL 1679484 (6th Cir. 2000). 6 Taking
the allegations in the amended complaint as true, it is clear that the CMO’s hostility
toward Ms. Resetar was gender-based and was necessarily related to the fact that Ms.
Resetar is a woman. This supports an inference that Ms. Resetar was terminated because
of her sex. This conclusion is further bolstered by the amended complaint’s allegation
that defendant did not fire male employees based on their physical appearance.
For all these reasons, I will deny defendant’s motion to dismiss Ms. Resetar’s
gender discrimination claim.
The amended complaint sets forth plausible claims for same-sex sexual
harassment and gender discrimination in violation of Title VII. Accordingly, I will deny
the defendant’s motion to dismiss in its entirety. 7
An appropriate Order follows.
The U.S. Court of Appeals for the Sixth Circuit reversed the district court, in Lococo,
regarding other claims. However, it affirmed the district court’s denial of summary judgment on
the plaintiff’s gender discrimination claim. Lococo is particularly instructive here because it also
involved a gender discrimination claim that was based upon the jealousy of a supervisor’s
The substantive analysis of claims under Title VII and the PHRA is identical. Huston v.
Proctor & Gamble Paper Prods. Corp., 568 F.3d 100, 104 n.2 (3d Cir. 2009). Therefore, I will
also deny defendant’s motion to dismiss the PHRA claim at Count III of the amended complaint.
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