Cartagena v. Service Source, Inc.

Filing 92

MEMORANDUM (Order to follow as separate docket entry) re: letter briefs, trial matters, pltf's MTD 81 . (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 1/29/19. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PEDRO CARTAGENA,
Plaintiff
v.
SERVICE SOURCE, INC.,
Defendant

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CIVIL ACTION NO. 1:17-CV-742
(Chief Judge Conner)

MEMORANDUM
Plaintiff Pedro Cartagena (“Cartagena”) commenced this action against his
employer, Service Source, Inc. (“Service Source”), asserting that Service Source is
liable for creation of a hostile work environment through sexual harassment. This
memorandum addresses several substantive issues raised by the parties during the
pretrial conference.
I.

Factual Background & Procedural History
Cartagena alleges that multiple female coworkers sexually harassed him over

a period of years. (Doc. 1 ¶ 19(a)-(b)). Service Source purportedly failed to address
his frequent complaints of sexual harassment. (Id. ¶¶ 19(c), 20-22). Cartagena filed
a dual charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and the Pennsylvania Human Relations Commission
(“PHRC”). (Id. ¶ 5; see also Doc. 55 at 5-6). After receiving a right-to-sue letter,
(Doc. 1 ¶ 5), Cartagena commenced this litigation. His complaint raises four counts
against Service Source for creation of a hostile work environment through sexual
harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-

2 and the Pennsylvania Human Relations Act (“PHRA”), 43 PA. STAT. AND CONS.
STAT. ANN. §§ 951-963 (Counts I and II, respectively); negligent supervision (Count
III); and intentional and negligent infliction of emotional distress (Count IV).
The parties did not engage in Rule 12 or Rule 56 motion practice. Trial is
scheduled to begin February 4, 2019. The court convened a pretrial conference
with the parties and counsel of record on January 16, 2019. The court ordered letter
briefing on several substantive matters raised by the parties during the conference.
II.

Discussion
Service Source raises, for the first time in its pretrial memorandum,

several substantive issues that may narrow the claims for trial. Specifically, Service
Source argues that (1) the statute of limitations significantly winnows the evidence
Cartagena may present on his hostile work environment claims, (2) any allegations
of sexual harassment that post-date the instant complaint should be excluded from
trial, (3) Cartagena’s negligent supervision claim is preempted by statute, and
(4) his sexual harassment claim fails as a matter of law. Cartagena opposes Service
Source’s statute of limitations argument and its request to preclude evidence of
post-complaint incidents of sexual harassment. He also contends, over a defense
objection, that Service Source’s chief executive officer should be required to testify
at trial. We will address these issues seriatim.
A.

Statute of Limitations

A plaintiff must file a charge of discrimination no later than 300 days “after
the alleged unlawful employment practice occurred” when he or she concurrently
files the charge with the EEOC and a state agency. 42 U.S.C. § 2000e–5(e)(1);
2

Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000). In Pennsylvania, a
plaintiff must file an administrative complaint of discrimination with the PHRC
within 180 days “after the alleged act of discrimination.” 43 PA. STAT. AND CONS.
STAT. ANN. § 959(h).
Under the continuing violation doctrine, a complaint of a discriminatory act
that occurs outside the applicable limitations period may be deemed timely if (1) the
plaintiff demonstrates a pattern of discriminatory acts that are not individually
actionable and (2) the pattern of discriminatory acts “continues into the applicable
limitations period.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165-66 (3d Cir.
2013) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002);
O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)). The doctrine does not
apply to discrete and complete discriminatory actions—e.g., termination, failure to
promote, denial of transfer, or refusal to hire—which are independently actionable
claims and are lost if not raised within the statutory period. Mandel, 706 F.3d at 165
(quoting Morgan, 536 U.S. at 113-14); O’Connor, 440 F.3d at 127 (citing Morgan, 536
U.S. at 113-14). To distinguish continuing violations from isolated occurrences, a
court should consider the subject matter and frequency of the underlying
discriminatory acts. Mandel, 706 F.3d at 166-67 (citations omitted).

3

Cartagena dual filed charges of discrimination with the EEOC and the PHRC
on July 12, 2016.1 (See Doc. 71 at 27; Doc. 85 at 1). To prevail on his Title VII and
PHRA hostile work environment claims, Cartagena will have to prove, inter alia,
that at least one discriminatory act occurred during the respective 300-day and 180day statute of limitations periods preceding his July 12, 2016 filing. See Mandel, 706
F.3d at 165-66. Service Source argues that Cartagena “has not alleged any specific
incident of harassment” that occurred within either limitations period. (Doc. 85 at
2, 4). On the present record, we are unable to determine whether Cartagena’s
claims are in fact time-barred.
Federal Rule of Civil Procedure 8(c) deems a statute of limitations bar to be
an affirmative defense that must be pled in an answer to the complaint. See FED. R.
CIV. P. 8(c). Nevertheless, a defendant may move to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) where the complaint facially shows that the cause
of action has not been timely filed. Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir.
2002) (citations omitted). Service Source properly preserved a statute of limitations
defense in its answer. (Doc. 7 at 5). But it elected not to file a motion to dismiss the
complaint or a motion for summary judgment, and the court is thus without any
factual record upon which to make the determination Service Source now seeks.

1

For the first time in a motion for sanctions, Cartagena represents that the
July 12, 2016 filing with the PHRC was an “amended complaint” and that his first
filing with the PHRC was dated April 2016. (Doc. 88 at 7). Service Source suggests
that the PHRC received a questionnaire from Cartagena in April 2016. (Doc. 90
at 2). This factual discrepancy does not alter the court’s conclusion infra.
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Because application of the statute of limitations and continuing violation doctrine is
naturally fact-intensive, we will deny the motion without prejudice to Service
Source’s right to reassert its motion at trial, if appropriate, pursuant to Federal
Rule of Civil Procedure 50.
B.

Post-Complaint Incidents of Sexual Harassment

Service Source also seeks to preclude Cartagena from introducing evidence
and testimony at trial of incidents of harassment that post-date the complaint filed
in this matter on April 26, 2017. (Doc. 85 at 4). Service Source identifies two such
incidents in its letter brief. In June 2017, a female coworker purportedly sat on
Cartagena’s knee causing physical injury, and, in January 2018, a female coworker
allegedly touched Cartagena inappropriately on the shoulder. (See id.; Doc. 71
at 19, 24). In support of its position, Service Source argues that (1) Cartagena failed
to file a supplemental complaint and (2) any post-complaint incidents are “isolated
and sporadic acts” which are too far removed from the allegations in the complaint
and not “severe or pervasive.” (Id.)
Federal Rule of Civil Procedure 15(d) allows a party, subsequent to court
approval, “to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be
supplemented.” FED. R. CIV. P. 15(d). Courts should freely grant leave to file
supplemental pleadings “when doing so will promote the economic and speedy
disposition of the entire controversy between the parties, will not cause undue delay
or trial inconvenience, and will not prejudice the rights of any of the parties.” Cash
v. Wetzel, 8 F. Supp. 3d 644, 658 (E.D. Pa. 2014); see also Kounelis v. Sherrer, 396 F.
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Supp. 2d 525, 529 (D.N.J. 2005); Medeva Pharma Ltd. v. Am. Home Prods. Corp., 201
F.R.D. 103, 104 (D. Del. 2001). The decision whether to permit a supplemental
pleading is committed to the sound discretion of the district court. See Cash, 8 F.
Supp. 3d at 658; Hassoun v. Cimmino, 126 F. Supp. 2d 353, 360 (D.N.J. 2000).
As a threshold matter, we construe Cartagena’s letter briefing as a motion to
serve a supplemental pleading under Rule 15(d). (See Doc. 84-1 at 10). Service
Source received adequate notice of Cartagena’s claims against it. The complaint
clearly sets forth a cause of action for a hostile work environment premised on
sexual harassment that spanned years of employment. (See Doc. 1). A plaintiff
need not plead each and every act of discrimination that contributed to the alleged
hostile work environment. See Roadcloud v. City of Philadelphia, No. 13-00777,
2014 WL 43759, at *5 (E.D. Pa. Jan. 6, 2014); Bahar v. Nw. Human Servs., No. 06-CV3910, 2007 WL 320256, at *4 (E.D. Pa. Jan. 30, 2007). The alleged June 2017 and
January 2018 incidents constitute additional occurrences or events of sexual
harassment that may have contributed to the hostile work environment.
Moreover, Cartagena represents that the parties “engaged in full discovery”
regarding the incidents of alleged discrimination that post-date the complaint.
(Doc. 84-1 at 10). Service Source supposedly examined Cartagena during his
deposition as to the alleged 2017 incident and sought discovery for events that
post-dated the complaint. (Id. at 11). Service Source does not dispute these
representations or argue that it was prejudiced in preparing for trial by Cartagena’s
failure to supplement his complaint. (See Doc. 85 at 4-5). And for the reasons
discussed supra, resolution of Service Source’s argument that these post-complaint
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incidents are isolated acts and neither severe nor pervasive cannot be resolved
absent a factual record. We will grant Cartagena leave to file a supplemental
pleading setting forth factual allegations pertaining to these post-complaint events.
Any post-complaint incidents of sexual harassment also bear on the issue of
employer liability. To prevail on a hostile work environment claim against his
employer, Cartagena must prove that (1) he suffered intentional discrimination on
the basis of sex, (2) the discrimination was severe or pervasive, (3) he was
detrimentally affected by the discrimination, (4) such discrimination would
detrimentally affect a reasonable person in similar circumstances, and (5) the
existence of respondeat superior liability. Mandel, 706 F.3d at 167 (citation omitted).
An employer may be held directly liable for sexual harassment perpetrated by the
victim’s non-supervisory coworker “only if the employer failed to provide a
reasonable avenue for complaint or, alternatively, if the employer knew or should
have known of the harassment and failed to take prompt and appropriate remedial
action.” Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104-05 (3d
Cir. 2009); see also Vance v. Ball State Univ., 570 U.S. 421, 427 & n.1 (2013).
Evidence that Cartagena continued to experience sexual harassment following the
commencement of this case may be relevant to and probative of whether Service
Source failed to take appropriate remedial action. We find that Cartagena is not
precluded from presenting evidence and testimony of post-complaint allegations of
sexual harassment in accordance with the Federal Rules of Evidence.

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C.

Voluntary Dismissal of Counts

Service Source suggests that Count III for negligent supervision relies on the
same set of facts as Cartagena’s PHRA claim and is therefore preempted. (Doc. 70
at 8). Service Source also avers that Count IV for intentional infliction of emotional
distress fails as a matter of law because the complaint does not allege that Service
Source engaged in sexual harassment or took retaliatory action against Cartagena
for turning down sexual propositions. (Id. at 8-9). In response, Cartagena moves
to voluntarily dismiss Counts III and IV, contingent upon the court granting his
motion in limine to preclude introduction of evidence or testimony concerning the
dismissed counts at trial. (Doc. 81 at 1; see Doc. 81-1). Service Source opposes
neither Cartagena’s motion to dismiss Counts III and IV, nor his request to exclude
evidence of the dismissed counts. (Doc. 85 at 1). The court will grant Cartagena’s
motion and request to exclude.2
D.

Testimony of Service Source’s Chief Executive Officer

Federal Rule of Evidence 43 requires that a witness’s testimony at trial be
“taken in open court unless a federal statute, the Federal Rules of Evidence, these
rules, or other rules adopted by the Supreme Court provide otherwise.” FED. R.
CIV. P. 43(a). A party may issue a subpoena to attend trial to a person “within 100
miles of where the person resides, is employed, or regularly transacts business in

2

Cartagena styles Count IV of the complaint as one for “Intentional and
Negligent Infliction of Emotional Distress.” (Doc. 1 at 6 (emphasis added)). Neither
party addresses a claim for negligent infliction of emotional distress in their
respective pretrial memoranda or subsequent letter briefing, (see Docs. 70-71, 81,
85), and Cartagena moves to dismiss Count IV in its entirety, (Doc. 81 at 1).
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person.” FED. R. CIV. P. 45(c)(1)(A). During the pretrial conference, Service Source
objected to its chief executive officer, Janet Samuelson (“Samuelson”), appearing as
a witness, noting that Samuelson was deposed and that her deposition testimony
should be sufficient. Cartagena contends that Samuelson’s testimony is highly
relevant and she should be required to appear at trial to testify. (Doc. 80 at 1).
Service Source failed to respond to Cartagena’s arguments. (See Doc. 85).
We see no reason why Samuelson should not be required to appear and
testify at trial. Cartagena provided the court with emails to Samuelson identifying
ongoing management issues and incidents of sexual harassment. (See Doc. 80-2).
According to the emails, one female employee provided naked pictures of herself to
Cartagena by cell phone and to various coworkers in hard copy format in the mess
hall. (Doc. 80-2 at 5-8). Cartagena also submitted the transcript of Samuelson’s
deposition wherein counsel questioned Samuelson at length as to her interpretation
of the emails and the course of action she took upon receiving them.3 (See Doc. 801). This proffer clearly demonstrates that Samuelson possesses personal knowledge

3

Cartagena points to the “apex doctrine” in support of his position. In
deciding if the deposition of an individual at the ‘apex’ of a corporation or other
entity is appropriate, district courts within the Third Circuit consider two factors:
“1) whether the executive has personal, superior, or unique knowledge on the
relevant subject; and 2) whether the information can be obtained in a less
burdensome way, such as through lower-level employees or other discovery
methods.” In re Tylenol (Acetaminophen) Mktg., Sales Practices & Prod. Liab.
Litig., No. 2:13-MD-2436, 2014 WL 3035791, at *3 (E.D. Pa. July 1, 2014) (citations
omitted); see also Pegley v. Roles, No. 17-CV-732, 2018 WL 572093, at *3 (W.D. Pa.
Jan. 26, 2018) (collecting cases). As in the deposition context, we find Samuelson’s
personal knowledge of events underlying Cartagena’s claims to be a persuasive
reason for requiring her testimony at trial. See Pegley, 2018 WL 572093, at *3.
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of facts underlying Cartagena’s claims sub judice. and Service Source offers no
compelling reason why she should not be required to testify in person in
compliance with Federal Rules of Civil Procedure 43 and 45.
III.

Conclusion
The court will grant in part and deny in part the parties’ various pretrial

requests, as more fully explained hereinabove. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

January 29, 2019