Gentile v. Classic Design Homes, Inc. et al
Filing
78
MEMORANDUM and OPINION -For the above reasons, the Court will grant in part and deny in part Defendants' Motion to Strike and Motion for Summary Judgment.As agreed to by the parties, the relevant portions of paragraphs 15,21,25, and 33 are stric ken from Plaintiffs Answer to the Statement of Facts. (Doc. 74, Ex. B). To the extent that paragraphs 16, 19,27,29,31,32,34,37,40,44,49,50,51,52,54,55,56,60, 64, 66 and the remainder of paragraphs 15, 25, and 33 are inflammatory, irrelevant, or merel y opinions or conclusions of law, the Court assigns no evidentiary value to them.The Court also grants summary judgment in favor of Defendants on Count I (pregnancy discrimination), Count III (tortious interference against Defendants DES and David We ngerd), Count IV (notice pay and with respect to Steven Wengerd), Count V(with respect to David Wengerd from the wrongful discharge claim), and Count VI (fraud). The claims remaining for trial are: Count I: sexual harassment based on gender and hosti le work environment for failure to take prompt immediate action, Count II: retaliation for engaging in protected activity, Count IV: WPCL and FLSA claims for maternity leave, overtime, and time worked, and Count V: wrongful discharge under public policy. The remaining defendants are DES, CQH, and CDH on all counts, except for Count IV under which David also remains as adefendant. A separate Order follows. Signed by Honorable Robert D. Mariani on 7/9/12. (jfg)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANNMARIE GENTILE
Plaintiff
v.
3:08-CV-2330
(JUDGE MARIANI)
DES, PROPERTIES, INC. d/b/a
CLASSIC QUALITY HOMES, INC., et aI.,
Defendants
MEMORANDUM OPINION
I. Introduction
Before the Court are Defendants' Motion for Summary Judgment (Doc. 61)1 and
Motion to Strike (Doc. 74). For the reasons set forth below, the Court will grant in part and
deny in part both motions.
II. Statement of Facts and Procedural History
In June 2007, David and Emma Wengerd purchased a home construction company,
Classic Design Homes, Inc. ("CDH"), from Plaintiffs previous employer, Raymond Bender
("Bender"), who continued to have access to part of the office until December 31,2007.
(Asset Purchase Agreement, Doc. 62, Ex. D).2 The Wengerds named their company DES
1 At the outset, the Court notes that Plaintiff has voluntarily agreed to withdraw: her claims against David
and Steven Wengerd on both Counts I and II, her claim against Steven on Count III, her claims for vacation and
sick/personal time on Count tV, and her claim against Steven on Count V (DOC. 77).
2 "Possession of Premises and Vehicles shall be delivered to Buyers on the Closing Date, except that the
Sellers reserve free of any rent or charge the right to occupy and use two {2} rooms in the sales office for their own
purposes until no later than December 31,2007." {Id. at 4ft 5}.
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Properties, Inc. ("DES"), d/b/a Classic Quality Homes, Inc. ("CQH"). (S. Wengerd Dep.,
Doc. 62, Ex. B, 15:22-24). Steven is the Wengerds' son who owns a 5% share in the
company and functions as the Vice-President (ld. at 12:10-12, 15:5-11). At his deposition,
Steven testified that he acts under the supervision of his father, and he does not supervise
the employees. (Id. at 23:19-24:4).
Between the sale and December 31,2007, Bender continued to access the property,
purportedly for business purposes. However, his behavior while on the premises
occasioned at least two police reports of sexual harassment and assault against Plaintiff, an
employee. Between June and November 2007, David was allegedly aware of Bender's
violent tendencies. He himself described Bender as "scary." (DW1 Dep., Doc. 62, Ex. C,
62:23-63:1). Plaintiff stated that she had informed David about Bender's history of making
sexual comments and inappropriate touching soon after he bought the company. (Gentile
Dep., Doc. 62, Ex. E, 152:4-153:12; 159:1-6, DW1 Dep., Doc. 70, Ex. A, 60:1-24). This
included an instance of Bender exposing his buttocks to Plaintiff sometime in October 2007.
(Gentile Dep., Doc. 62, Ex. E, 152:22-153:8, Police Statement, Doc. 70, Ex. K, at 3-4).3
On November 9, 2007, Bender returned again to DES and allegedly sexually
assaulted Andrea Costenbader, Plaintiffs co-worker, by shoving his hand down her pants
and grabbing her buttocks. (Police Statement, Doc. 70, Ex. K). After the incident, two male
co-workers, (Gaito and Knott) advised Costenbader to call the police. Knott also told
3 In her statement to the police, Plaintiff also alleged that Bender "had shoved his whole face into my
breast." (Doc. 70, Ex. K, at 3).
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Bender to leave the premises, and Bender did not return that day. (Costenbader Dep., Doc.
62, Ex. F, 91 :18-94:22). Following Bender's assault on Costenbader, Plaintiff called the
police. Both Costenbader and Plaintiff submitted statements to the police on the 10th.
(Doc. 70, Ex. K). David was not on the premises at the time of the assault, but he came in
later that day and found out what had happened. (DW1 Dep., Doc. 62, Ex. C, 71: 12-72:7).
He said that Knott "stepped in and we decided we should keep [Bender] off the property."
(Id. at 115:19-21). Knott claims that the Wengerds "refused to believe Ms. Costenbader and
Ms. Gentile, and sided with Mr. Bender. (Knott Aff., Doc. 70, Ex. L, mr 19-20).4 David
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admitted he did not conduct an independent investigation because he felt the police were
better equipped to handle the matter. (DW1 Dep., Doc. 62, Ex. C, 118:5-11).
David acknowledged that Gentile had told him about Bender's conduct and her
complaints. (DW2 Dep., Doc. 70, Ex. B, 49:9-51 :4). However, after his conversation with
Gentile, David admitted he did not approach Bender about it because "Bender was like
$50,000,000 and I would have been a little guy. I would never dare say anything to
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Bender." (DW1 Dep., Doc. 62, Ex. C, 61 :4-8). He then said he did not do anything after the
conversation with Gentile "because [Gentile] put me under the impression that all you had to
do was tell him to leave and he would go. So I didn't think it was anything serious at this
point." (Id. at 61 :11-14). David admitted that when Gentile told him about Bender's
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conduct, he understood her to mean that both she and Plaintiff were bothered by it. David
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4 Knott was also terminated in August 2009 and at the time of his affidavit was involved in a lawsuit
against DES for commissions he claims he never received. Id. at 1111 33-34.
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also said that he did not fully believe Gentile because "I guess my idea would have been
that if you want to bother somebody, you would bother some different type of person." To
clarify his answer he stated, "I guess somebody a little more attractive." (DW2 Dep., Doc.
70, Ex. B, 51:12-21).
Bender returned to the office on November 13, 2007, asking "Where is she?"
ostensibly referring to Costenbader (Costenbader Dep., Doc. 70, Ex. F, 40:6-7). A
salesman (Hanyon) distracted Bender and got him out of the office by directing him to the
warehouse. (Id. at 41 :8-14). Bender did not return, and Costenbader had no contact with
him that day. (ld. at 40:16-18,41 :13-15). David allegedly apologized for "putting his money
ahead of us girls." (ld. at 46:16-18). Costenbader alleges that David delayed delivering the
letter until after he had closed sales on some of Bender's houses. (DW1 Dep., Doc. 70, Ex.
A, 116:13-17; 116:24-117:14). Costenbader stayed home for the next two days.
(Costenbader Dep., Doc. 70, Ex. F, 59:10-13). On the 15th, David confirmed to
Costenbader that he had personally delivered the letter to Bender.5
Plaintiff settled her case separately with Raymond Bender and withdrew the crirninal
charges against him. After Costenbader was terminated, Plaintiff claims she was subjected
to an even more hostile work environment: she was harshly disciplined, repeatedly
threatened with termination, her work-station was searched for evidence to justify
terminating her, and Bender's attorney repeatedly harassed her at work with phone calls.
5 Defendant has not produced this letter as evidence because David's copy was allegedly destroyed in a
fire at the office. His attorney who drafted the letter has a brain tumor and has been unable to produce it. (DW1
Dep., Doc. 70, Ex. A, 116:19-23).
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(Doc. 62, Ex. I, at ~ 8; Gentile Dep., Doc. 62, Ex. E, 79:13-82:7). Furthermore, Plaintiff
claims that after Costenbader was fired, other male co-workers made jokes about Bender to
Plaintiff. On one occasion, a male co-worker "pulled a piece of lint off my shirt, and the guys
made ajoke saying, You better watch out or you're next, or made ajoke towards what was
going on with Bender. And David was sitting right there and they laughed and I was furious
that he allowed them to say that." (Gentile Dep., Doc. 62, Ex. E, 150:15-24). Plaintiff also
filed a written complaint with David about the offensive comments. (Gentile Dep., Doc. 70,
Ex. G, 146:10-20).
Because Defendants allegedly failed to take action, Plaintiff filed an EEOC Charge of
Discrimination. (Doc. 62, Ex. I). Her Charge contained three Counts: (I) Sex
Discrimination/Harassment/Pregnancy Discrimination, (II) Race Discrimination/Harassment,
and (III) Retaliation. She also claimed that she experienced discrimination on acontinuing
basis. According to the EEOC Case Referral Log, Gentile filed her Charge on November
30, 2007. (Doc. 62, Ex. J). Her initial charge was received by the agency that day, but the
investigator did not receive it until November 25, 2008. (ld.). Meanwhile, Gentile had
requested a right-to-sue letter on August 28,2008 (ld.) because more than 180 days had
passed since she had filed her initial charge. The letter was issued on December 11, 2008
(Doc. 70, Ex. R), and she filed her Complaint in this case on December 31 ,2008. (Doc. 1).
Also in November 2007, Plaintiff notified David she was pregnant, with an anticipated
due date of August 2008. (Gentile Dep., Doc. 62, Ex. E, 78:5-24). According to Plaintiff,
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David agreed to provide her with paid maternity leave and paid vacation time. (Id. at 86:7
17, DW2 Dep., Doc. 70, Ex. B, 92:9-94:18, SW Dep., Doc. 70, Ex. C, 45-49). However,
David later approached Plaintiff about taking a temporary layoff on June 28, 2008 with a
return to work on October 1, 2008, and proposed she receive unemployment compensation
during that time. (Gentile Dep., Doc. 62, Ex. E, 89:2-90:7, 94:2-9). During that three-month
period, Plaintiff alleges Defendants continued to call her in to work without fully
compensating her. (Id. at 19:24-20:2, 96:9-12).
Furthermore, Defendants told unemployment compensation authorities that she had
quit her job (Doc. 70, Ex. Z), so she was required to pay back all of the unemployment
compensation she had received. (Doc. 62, Ex. Q).
III.
Standard of Review on Motions for Summary Judgment
Through summary adjudication the court may dispose of those claims that do not
present a "genuine issue as to any material fact." FED. R. CIV. P. 56(a). Summary judgment
"should be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Turner v. Schering-Plough
Corp., 901 F.2d 335, 340 (3d Cir. 1990). "As to materiality, ... [o]nly disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry
of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party moving for summary judgment bears the burden of showing the absence of a genuine
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issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
such a showing has been made, the non-moving party must offer specific facts contradicting
those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888 (1990). "Inferences should be drawn in the light most
favorable to the non-moving party, and where the non-moving party's evidence contradicts
the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW
of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912 (1993).
IV. Analysis
Motion to Strike
Defendants assert that portions of Plaintiffs Answer to Statement of Facts ("ASOF")
(Doc. 70) are inflammatory, irrelevant, and merely opinions or conclusions of law instead of
brief, helpful, factual statements.
Speci'fically, Defendants seek to strike mr 15, 16, 19,21,25,27,29,31,32,33,34,
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37,40,44,49, 50,51,52,54,55,56,60,64,66 and cite Hartshorn v. Throop Borough, No.
3:07-cv-01333, 2009 WL 761270, at *3 (M.D. Pa. 2009); Deluca v. Simmons Mfg. Corp.,
Inc., No. 3:07-cv-2143, 2009 WL 1107909 (M.D. Pa. 2009). In both cases, Judge Caputo
struck portions of the Statement of Facts because they were irrelevant, inflammatory, or
conclusions of law. Plaintiff has agreed to strike portions of ml15, 21, 25, and 33 (Doc. 74,
Ex. 8), so the Court will grant Defendants' motion and strike those paragraphs accordingly.
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As for the remaining paragraphs that Defendants seek to strike, after a review of the
ASOF, the Court notes that Defendants object to the listed paragraphs because they
contain much material that would be better suited for a brief. The "counterstatements of
fact" are essentially arguments. Rather than examining the remaining twenty paragraphs
and excising the offending portions (an exhaustive effort that will yield little benefit to either
Defendants or the Court), the Court will deny the motion to strike and instead assign any
conclusions of law or inappropriate arguments no evidentiary value.
a. Count I: Sexual discrimination/hostile work environment6
Defendants allege that Gentile failed to exhaust her administrative remedies
because she did not amend her EEOC charge after November 2007. However, the Court
finds there is asufficient nexus between her sexual harassment/discrimination/hostile work
environment claims in her EEOC charge from November 2007 and the same claims in her
Third Amended Complaint, especially in light of Plaintiffs claims of Defendants' continuing
actions of discrimination. Anjelino v. N. Y. Times Co., 200 F.3d 73,94 (3d Cir. 1999). The
Court thus turns to the merits of the parties' arguments.
Plaintiff is alleging that Defendants took inadequate remedial measures in response
to Bender's conduct (Le. they failed to prevent a hostile work environment). To state a claim
6 Under Count I, if the Court finds that Defendants intentionally engaged in an unlawful employment
practice, Plaintiff is eligible for backpay, reinstatement, and other forms of equitable relief, such as the clearing of
any negative personnel files or references. 42 U.S.c. § 2000e-S(g)(1). As such, Plaintiff is entitled to seek such
relief in connection with her claim that DES is directly liable for its alleged failure to take prompt remedial action in
response to her complaints about Bender's activity and for perpetuating a hostile work environment after DES
terminated Costenbader's employment.
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under Title VII for discrimination resulting from a hostile work environment, an employee
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must show that:
(1) she suffered intentional discrimination because of her [sex]; (2) the
discrimination was severe or pervasive; (3) the discrimination detrimentally
affected her; (4) it would have detrimentally affected a reasonable person in
like circumstances; and (5) a basis for employer liability is presenU
Guthrie v. Baker, 583 F. Supp. 2d 668, 681 (W.o. Pa. 2008) (citing Jensen v. Potter, 435
F.3d 444, 453 (3d Cir.2006), overruled in part on other grounds by Burlington N. & Santa Fe
Ry. v. White, 548 U.S. 53,67-68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
An employer is liable under Title VII for harassment of its employees by nonemployees such as Bender where it is aware of the problem and fails to take prompt and
appropriate corrective action. Faragher v. City of Boca Raton, 524 U.S. 775, 789, 118 S.Ct.
2275,2284 (1998) C'the combined knowledge and inaction may be seen as demonstrable
negligence, or as the employer's adoption of the offending conduct and its results, quite as if
they had been authorized affirmatively by the employer"). EEOC Guidelines also provide
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An employer may also be responsible for the acts of non-employees, with
respect to sexual harassment of employees in the workplace, where the
employer (or its agents or supervisory employees) knows or should have
known of the conduct and fails to take immediate and appropriate corrective
action.
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29 C.F.R. § 1604.11 (d-e).
7 The fifth element is usually "the existence of respondeat superior liability." Andreoli v. Gates, 482 F.3d
641,643 (3d Cir. 2007). However, in this case, Bender was not an agent of DES because he was no longer an owner
or employee. Plaintiff has specifically stated she is suing DES for direct, not vicarious, liability.
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An employer can be liable for the harassing conduct of the victim's harasser if the
employer was "negligent or reckless in failing to train, discipline, fire or take remedial action
upon notice of harassment." See Andreoli, 482 F.3d at 644 (citing Bonenberger v. Plymouth
Twp., 132 F.3d 20, 26 (3d Cir.1997) and Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 106
(3d Cir.1994)). Even if the remedial action does not stop the alleged harassment, it is
"adequate" if it is "reasonably calculated" to end the harassment. Knabe v. Boury Corp.,
114 F.3d 407, 412-13 (3d Cir.1997). The employer also has a duty to investigate whenever
it becomes aware of harassment. It is not essential for the victim of harassment to lodge a
formal or informal complaint. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72, 106 S.Ct.
2399,2408 (1986) ("Finally, we reject petitioner's view that the mere existence of a
grievance procedure and a policy against discrimination, coupled with respondent's failure
to invoke that procedure, must inSUlate petitioner from liability.").
Bender's contract with Defendants allowed him access to two rooms in the sales
office until the end of 2007. (Asset Purchase Agreement, Doc. 62, Ex. 0,). Under
Pennsylvania law, the contract is to be interpreted in light of an implied duty of good faith
and fair dealing, as well as the doctrine of necessary implication. That doctrine, similar to
the requirement of good faith, has been described as follows:
In the absence of an express provision, the law will imply an agreement by
the parties to a contract ... to refrain from doing anything that would destroy
or injure the other party's right to receive the fruits of the contract.
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Slater v. Pearle Vision etr., 546 A.2d 676, 679 (Pa. 1988); see also Slagan v. John
Whitman & Assocs., No. Civ.A. 97-3961,1997 WL 587354, at *5 (E.D. Pa. Sept. 10, 1997)
(holding in a sexual harassment case that "Whether under the Restatement's implied duty of
good faith performance of a contract or the doctrine of necessary implication, ... Plaintiffs
employment contract contained the implied term that his conduct would be lawfuL").
Though Bender was not an employee of Defendant, his contract with Defendant contained
an implied term that while on the business premises, his conduct would be lawful. Once
Bender allegedly breached that duty by sexually harassing Costenbader and Plaintiff, at the
very least, Defendants had a duty to investigate and prevent further harassment to its
employees. Faragher, 524 U.S. at 789; Meritor, 477 U.S. at 72; Andreoli, 482 F.3d at 644;
Knabe; 114 F.3d at 412-13. Because Defendants cannot establish as a matter of law that
they were either unaware of Bender's conduct or that they took prompt and adequate
remedial measures, the Court will deny their motion for summary judgment on this count.
Following the events of November 9,2007, Gentile filed formal criminal charges
against Bender. (Doc. 70, Ex. K). Once David came to the office, he learned of the day's
events. (DW1 Dep., Doc. 70, Ex. A, 71 :12-72:7). Defendants cannot claim lack of notice.
Because Defendants were as on notice, they had a duty to investigate the problem.
However, David admitted he did not because he allegedly felt the police were better
equipped to handle it. (ld. at 118:5-11). He also stated he personally delivered a letter to
Bender warning him to stay off the property, but Defendants have not produced the letter
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yet. (/d. at 116:19-23). David also waited until closing on some of Bender's homes before
delivering the letter (Id. at 116:13-17; 116:24-117:14). He also stated at his deposition that
he would never dare to say anything against Bender because he, David, was a "little guy"
and Bender was $50,000,000.00 (/d. at 61 :4-8), which is inconsistent with his statement that
he personally delivered the letter to Bender and told him to stay away.
Though Bender and Costenbader had no contact when Bender returned to the office
on November 13, he was kept away from Costenbader not through the employer's action
but because one of the salesman intervened to distract Bender. The employer itself took no
action to ensure Costenbader was insulated from Bender presence. (Costenbader Dep.,
Doc. 70, Ex. F, 40:16-18, 41:13-15).
Plaintiff claims that after Costenbader was fired, other male co-workers made jokes
about Bender to Plaintiff. On one occasion, a male co-worker "pulled a piece of lint off my
shirt, and the guys made ajoke saying, You better watch out or you're next, or made ajoke
towards what was going on with Bender. And David was sitting right there and they laughed
and I was furious that he allowed them to say that." (Doc. 62, Ex. E, at 150:15-24).
Therefore, the Court will deny the motion for summary judgment on the count for
sexual harassment/discrimination/hostile work environment based on the existence of
genuine issues of material fact as to Plaintiffs claims of gender and hostile work
environment for failure to take prompt remedial action.
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In contrast, DES is entitled to summary judgment on Plaintiffs pregnancy
discrimination claim because at her deposition, she said she did not feel she was treated
differently from non-pregnant employees (Gentile Dep., Doc. 62, Ex. E, at 79:5-12), even
though she claimed in her Third Amended Complaint that Defendants "failed to accord Ms.
Gentile, during her pregnancy, the same treatment, terms, conditions and benefits of
employment afforded to other employees who were not pregnant." (Doc. 56,11 54). At her
deposition, when Defendants' counsel asked her how she was treated differently, she could
not "think of anything at the moment." (Doc. 62, Ex. E, at 205:4-16). Plaintiff did not
respond to Defendants' motion for summary judgment on this claim in her Brief in
Opposition (Doc. 71).8 Furthermore, Plaintiff cites to no evidence in the record that she was
mistreated because of her pregnancy.
Because Plaintiff did not respond to Defendants' arguments in her Brief in
Opposition, she twice stated at her deposition that she was not treated differently as a result
of her pregnancy, and there is no independent evidence in the record to support a
pregnancy discrimination claim, the Court will grant Defendants summary judgment on
Count I based on pregnancy discrimination.
b. Retaliation
B Plaintiffs Answer to Defendants' Statement of Facts ("ASOF") ~1 40 partially addresses Defendants'
argument. Defense counsel asked her "aside [from] issues at the end of your employment," how she was treated
differently based on her pregnancy. (Gentile Dep., Doc. 62, Ex. E, at 79). However, when counsel against asked the
question, this time without time limitations, her answer remained the same: she could think of no instance in
which she was treated differently because of her pregnancy. (/d. at 205).
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Under a Title VII retaliation claim, the employee bears the initial burden of
establishing a prima facie case of retaliation. She must show (1) protected employee
activity; (2) adverse action by the employer either after or contemporaneous with the
employee's protected activity; and (3) a causal connection between the employee's
protected activity and the employer's adverse action. Marra v. Philadelphia Hous. Auth.,
497 F.3d 286, 300 (3d Cir. 2007). Once a plaintiff meets her burden, the burden shifts to
the employer to articulate a legitimate, non-retaliatory reason for the adverse action. Id.
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,36 L.Ed.2d 668
(1973)).
Plaintiff claims she engaged in the following protected activity: (1) she complained
about Bender's conduct towards her and Costenbader as early as July 2007; (2) in
November 2007 when Bender sexually assaulted Costenbader, Gentile called the police on
November 9,2007. They both filed written reports on November 10th; (3) sometime in
November 2007, Gentile hand-delivered a letter to David stating she "didn't think that he
was protecting my rights. People in the office were making outrageous comments to me
that had to do with the assault with Bender, and he never stopped it and witnessed it."
(Gentile Dep., Doc. 70, Ex. G, 146:10-20); (4) Gentile filed her EEOC Charge on November
30,2007; and (5) Gentile filed an application for unemployment compensation on July 1,
2008 and at some unknown times sought wages for time worked and maternity leave.
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The Court finds as a matter of law that the actions alleged in item (5) do not
constitute protected activity under a Title VII retaliation claim. At least two courts outside of
this circuit have held that filing an application for unemployment compensation is not
protected activity under Title VII. McDonald-Cuba v. Santa Fe Protective Svcs., Inc., 644
F.3d 1096, 1102 (10th Cir. 2011) ("[Plaintiff] fails to cite any authority recognizing an
application for unemployment benefits, without more, as a form of protected activity under
Title VII. [Plaintiffs] retaliation claim therefore fails as a matter of law. She has identified no
protected activity that could form the basis for a properly-exhausted retaliation claim.");
Edwards v. Creoks Mental Health Srvcs., Inc., 505 F. Supp. 2d 1080, 1093 (N.D. Ok. 2007)
("Here, plaintiff did not engage in protected opposition to discrimination; filing for
unemployment compensation in [sic] entirely unrelated to Title VII. Because plaintiff did not
engage in a 'protected activity' under Title VII, defendant is entitled to summary judgment on
plaintiffs retaliation claim."). Defendants do not brief this point at all while Plaintiff cites one
inappOSite case to support her position. Petrunich v. Sun Bldg. Sys., Inc., No. 3:CV-04
2234,2006 WL 2788208, at *8 (M.D. Pa. Sep. 26,2006) ("The opposition to [a plaintiffs]
claim for unemployment compensation benefits [may be] an adverse employment action
because it [could] discourage a reasonable worker from filing [a] discrimination complaint.").
Petrunich discusses whether opposition to an application for unemployment compensation
could constitute an adverse action, whereas the issue before the Court is whether filing the
application constitutes protected activity. Furthermore, requesting maternity leave is
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"neither participation in a Title VII proceeding nor an act in opposition of discrimination."
McCormick v. Allegheny Valley Sch., No. 06-3332, 2008 WL 355617, at *17 (E.D. Pa. Feb.
6,2008). The same reasoning would apply to an attempt to recoup wages earned.
Nevertheless, Gentile can still seek relief under her wrongful discharge claim for the
allegations in (5).
Plaintiff alleges that following her EEOC complaint, internal complaints, and police
report, she was subjected to harsher discipline (Le., adverse actions) in the form of: (1) an
increased workload as soon as Costenbader was terminated (Gentile Dep., Doc. 62, Ex. E,
125:2-9); (2) threats of termination (on two occasions in January/February and May 2008,
David told Plaintiff, "you know your job depends on it" (Id. at 76:7-17; 81:1-82:7; DW2 Tr.,
Doc. 70, Ex. B, 47:2-9); (3) asearch of her work-station on November 26, 2007 for evidence
to justify her termination; (4) exposure to harassing phone calls from Bender's attomey
following Bender's arrest; (5) and termination in 2008.
The Court finds as a matter of law, items (1) and (3) do not constitute adverse
actions. After Plaintiff complained about her increased workload, Defendants permitted her
to share it with co-workers. (Doc. 62, Ex. E, 82:20-84:15). Furthermore, her work-station
was searched on only one occasion. (Gentile Dep., Doc. 70, Ex. G, 128:15-17).
However, the Court founds that items (2), (4), and (5) could constitute adverse
actions when considered together and across the entire period from November 2007 to
August 2008. Though Gentile acknowledges that she was never disciplined at work (e.g.,
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reprimands, write-ups, suspensions, etc.), directions to an employee to finish a project
quickly because her "job depends on it" could be adverse. Defendants' failure to intervene
to prevent Bender's attorney from harassing her by calling her at work after Plaintiff
complained about it could also be adverse. Obviously, terminations are adverse actions
under Title VII.
Plaintiff argues both in her Charge and Complaint that the retaliatory acts were part
of a continuing action against her. See, e.g., Woodson v. Scott Paper Co., 109 F.3d 913,
920-21 (3d Cir. 1997) (In Title VII retaliation claims, "a plaintiff can establish a link between
his or her protected behavior and subsequent discharge if the employer engaged in a
pattern of antagonism in the intervening period."). Woodson held that actions that by
themselves would not constitute adverse action could be considered adverse action if
considered as a whole (including termination). Id. at 921.
Plaintiff is not attempting to use temporal proximity to show causation, nor could she.
Under several Third Circuit cases, the eight or nine months between Plaintiffs last protected
activity in November 20079 and her discharge in July/August 2008 10 do not suggest a
sufficient temporal proximity from which a court could infer acausal link. LeBoon v.
Lancaster Jewish Cmty. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007) {finding that "a gap of three
months between the protected activity and the adverse action, without more, cannot create
9 Excluding her application for unemployment compensation on July 1, 2008, request for maternity leave,
and attempts to recoup unpaid wages.
10 Defendants maintain an internally inconsistent position. They informed the Unemployment
Compensation Board that Gentile had quit. (Doc. 70, Ex. Z; see also DW2 Dep., Doc. 70, Ex. B, 92:24-93:1).
However, in their briefs, they agree with Gentile that at some point, Gentile was terminated.
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an inference of causation and defeat summary judgment."); Andreoli v. Gates, 482 F.3d
641,650 (3d Cir. 2007) (finding the same for a five-month gap).
Rather, Plaintiff is attempting to show a pattern of antagonism in the 8-9 month
interval between her last protected activity and resulting termination. In Woodson, the Third
Circuit found that there was sufficient evidence of a pattern of antagonism in the two-year
period between the plaintiff's filing of an EEOC charge and his subsequent discharge.
The jury might reasonably have concluded that Scott engaged in a pattern of
antagonistic behavior against Woodson after his complaints, setting him up to
fail [by promoting him to lead] a poorly performing division, [refusing to
provide him with necessary supportL and then terminating him through a
"sham" ranking procedure. Although none of the pieces of evidence that we
have discussed, standing alone, would be sufficient to allow this inference
(especially the "environment" evidence), the evidence as a whole can be so,
particularly when we consider, as we must, that the verdict may have been
based in part on the jurors' evaluation of each witness' credibility and
demeanor.
Id. at 924. See also Kachmar v. SunGard Data SyS" Inc., 109 F.3d 173, 178 (3d Cir. 1997)
(reversing district court grant of summary judgment in favor of defendant and 'finding
sufficient pattern of antagonism between the plaintiff's last complaint about gender
discrimination and discharge, a period of approximately six months. The defendant told the
plaintiff she was being taken off the "management track," advised her to look for another
job, and offered her position to a male while she was still employed with the defendant).
Because there is no unusually suggestive temporal proximity between Gentile's
protected activity and discharge, the Court must consider whether all of the adverse actions
taken together show acausal link between Gentile's protected activity and resulting
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discharge. Plaintiff has sufficiently shown a pattern of antagonism over a nine-month period
to establish a prima facie case of retaliation. With respect to this claim, Defendants spend
the entirety of their brief arguing that Plaintiff has not established a prima facie case. Under
the burden-shifting framework of McDonnell Douglas, they do not argue why Plaintiff was
terminated for legitimate, non-retaliatory reasons. Therefore, the Court will deny
Defendants' motion for summary judgment on this count.
c. Tortious Interference
Plaintiff says she was terminated on June 28, and she filed for unemployment
bene'fits on July 1, 2008. She began receiving them the second week of July, and her
benefits ended around the beginning of August. (Gentile Dep., Doc. 62, Ex. E, 41 :18-42:4).
On August 26, Steven stated in an oral interview with a Board representative that
Plaintiff "just said she couldn't work anymore because she was pregnant. [S]he never gave
us a dr's note or anything." (Doc. 70, Ex. Z). "She quit and we had to hire someone to
replace her. There was no lack of work." (Id.). In a letter from DES dated August 29,2008,
Defendants reported to the Board, "Annmarie gave us notice ahead of time that she will be
off for 2or 3 weeks for maturity [sic] leave starting July 1st 2008. After 5 weeks we could no
longer operate without another office worker, b[e]cause we had some temporary school
help, and Annmarie told us she could not be back before Oct. 1st 2008 so we therefore
hired another office employee." (Doc. 70, Ex. V).
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On August 30, Gentile 'filed her petition to appeal. (Doc. 62, Ex. M). At Gentile's
appeal on October 1, Jeff Hanyon testified on DES's behalf, but Gentile failed to attend the
referee's hearing.11 (Doc. 62, Ex. N). The referee affirmed the denial of benefits on
October 8, and Gentile filed her appeal on October 10. (Doc. 62, Ex. 0, P). On November
18, the Board of Review affirmed the referee's judgment as modified and determined a
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$2,289 fault overpayment had been established. (Doc. 62, Ex. Q).
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As an at-will employee, Plaintiff was not entitled to rely on whatever promises David
may have made to her regarding hiring her back in October 2008 (see discussion of at-will
employees, infra). Defendants were within their rights to contest her claim for
unemployment compensation under the Unemployment Compensation Law. See generally
43 PA. CONS. STAT. § 821 et seq. Therefore, there could not have been tortious
interference.
In light of the foregoing, Plaintiffs reliance on Krashna v. Oliver Realty, Inc., 895
F.2d 111, 115 (3d Cir. 1990) is unavailing. First, Krashna dealt with the claim of tortious
interference of the plaintiffs right to workmen's cornpensation, not unemployment benefits.
Second, the court in Krashna ultimately determined that the Labor Management Relations
Act did not completely preempt state law claims for interference with the right to worker's
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compensation benefits, and therefore, the district court lacked removal jurisdiction. To the
court, the plaintiffs claim appeared more akin to a claim of tortious interference rather than
11 Defendants claim that their communications to the Board were statements in a quasi-judicial action
protected by absolute immunity. See Milliner v. Enck, 709 A.2d 417 (Pa. Super. Ct. 1998). This issue is now moot.
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wrongful discharge, thereby exceeding the scope of the LMRA. In reaching its decision, the
Third Circuit stated that "We need not consider the viability of this state claim nor whether
ordinary preemption operates against it. These are matters for the state court." Id. at 115,
n.7. Therefore, while not explicitly recognizing a cause of action for tortious interference
with the right to receive worker'S compensation benefits, the Third Circuit did not foreclose
the possibility that the cause of action existed.
Plaintiff has not been able to cite to any cases which recognize a cause of action for
tortious interference of the right to unemployment benefits. The Court will not fashion a new
state law cause of action where no authority exists to do SO.12 Thus, the Court will grant
Defendants summary judgment on this claim.
d. Unpaid Wages
Plaintiff sues under Wage Payment Protection and Collection Law ('IWPCL"), 43 PA.
CONS STAT. § 260.1 and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq.,
for paid maternity leave, failure to provide two weeks' notice pay on termination, and failure
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to pay for time worked and for overtime. Plaintiffs sole basis for her claim is that despite
the absence of a written policy, Costenbader was given two weeks' notice pay, but
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Costenbader herself acknowledged that the Wengerds had not instituted any policy
regarding notice pay. (Costenbader Dep., Doc. 62, Ex. F, 211 :16-21). See Morosetti v.
By finding that Plaintiff does not have a cause of action in this case, the Court does not mean to imply
that Plaintiff would not otherwise have a cause of action for the tort of wrongful discharge. Phillips v. Babcock &
Wilcox, 503 A.2d 36 (Pa. Super. Ct. 1986) (holding that the tort of wrongful discharge was available only for at-will
employees but not for employees who were protected by a collective bargaining agreement) (citing Geary v.
United States Steel Corp., 319 A.3d 174 (Pa. 1974).
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Louisiana Land and Exploration Co., 564 A.2d 151,153 (Pa. 1989) ("A company may
indeed have a policy upon which they intend to act, given certain circumstances or events,
but unless they communicate that policy as part of a definite offer of employment they are
free to change as events may require."). There is no evidence that DES required notice
before an employee resigns; therefore there was no legally enforceable policy of DES
entitling any employee to two weeks of notice pay under 43 PA. CON. STAT. § 291.
Plaintiff also claims that Steven is liable under the WPCL as an employer, whereas
Defendants argue that Steven is not an employer as defined by case law. Under the
WPCL, an employer "[i]ncludes every person, firm, partnership, association, corporation,
receiver or other officer of a court of this Commonwealth and any agent or officer of any of
the above-mentioned classes employing any person in this Commonwealth." 43 PA. CONS.
STAT. § 260.2a. Under the plain terms of the statute, at first blush, Steven would appear to
be liable as the Vice-President of DES.
However, "[t]o hold an agent or officer personally liable for unpaid wages, evidence
of an active role in decision making is required." Hirsch v. EPL Techs., Inc., 910 A.2d 84, 88
(Pa. Super. Ct. 2006) (citing Int'l Ass'n of Theatrical Stage Employees, Local Union No.3 v.
Mid-At!. Promotions, Inc., 856 A.2d 102, 105 (Pa. Super. Ct. 2004) in which the court found
the defendant was not an "employer" under the WPCL because though he was a production
manager, he had no authority to make independent hiring decisions or to enter binding
employment contracts)) (internal quotation marks omitted). Though a defendant's title as a
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corporate officer may be relevant to the determination of whether he is an "employer" under
the WPCL, it is not necessarily dispositive. Thus, a plaintiff must "show [the defendant] was
actively involved in corporate policy-making, such as corporate decision-making or
corporate advisement on matters of payor compensation" (Le. being the contracting party
for the payment of wages). Id. at 91; see also Walsh v. Alarm Sec. Group, Inc., 95 F. App'x.
399, 402 (3d Cir. 2004) (holding that the WPCL "imposes personal liability on high-ranking
corporate officers for employees' unpaid wages.").
To illustrate when a corporate officer was or was not a policy-making officer, the
Hirsch court cited several cases. For instance, though a defendant was authorized to sign
checks on the corporate checking account, where there was no evidence that "he actively
participated in decisions or gave advice regarding payor compensation," but rather "that he
merely carried out decisions made by others, .... there [was] no basis for appellee's
liability, other than by virtue of holding office as corporate secretary." Id. at 91 (citing
Mohney v. McClure, 568 A.2d 682, 685-66 (Pa. 1990) (granting summary judgment for the
defendant (Hanak) because the plaintiff failed to produce evidence that Hanak was actively
involved in corporate decision-making). In Hirsch itself, the Superior Court affirmed the trial
court's ruling that the plaintiff, a company VP, was not an employer (and was thus entitled to
relief as an employee of the defendant-president under the WPCL) because even though he
had the authority to sign binding documents as the corporation's assistant secretary, that
authority was derived from the direction of the Board of Directors and his superiors. Hirsch
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"had no independent authority to settle claims or write check to pay creditors.... While he
dealt administratively with unemployment compensation claims filed by former employees,
he had no independent authority to hire and fire employees, or to bind the corporation to
agreements or obligations," absent the approval of his superiors. ld. at 90.
Here, the undisputed evidence shows that Steven is a minority shareholder of DES
(S. Wengerd Dep., Doc. 62, Ex. B, 15:5-11) and the Vice-President. (/d. at 12:10-12). His
duties include being responsible for accounting, employee payroll matters, and
warehousing. (Id. at 12:21-24). The evidence also shows that he was the point of contact
between DES and the Unemployment Compensation Board. (Doc. 70, Exs. Y, Z).
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However, no evidence has been presented that indicates whether Steven has independent
authority to make policy or employment decisions or whether he can enter contracts binding
DES. In fact, Steven testified that he acts under the authority of his father, David, and that
he does not supervise the employees. (ld. at 23:19-24:4). Thus, Plaintiff has failed to meet
her burden showing that Steven is actively involved in the corporate decision-making
process. Like Hanak in Mohney, Steven is a "non-functioning corporate officer" who bears
the title of Vice-President and performs some administrative work, but who lacks
independent authority to do much else. Mohney, 568 A.2d at 683. Thus, the Court will
grant summary judgment on this claim in favor of Steven.
Therefore, the Court will grant summary judgment to Defendants with respect to
notice pay and will grant summary judgment to Steven Wengerd in the entirety of this count.
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Defendants did not move for summary judgment on the issues of paid maternity leave or
failure to pay for time worked/overtime under either the WPCL or FLSA, so those claims will
stand for trial against the remaining defendants.
e. Wrongful Discharge
The parties disagree whether David can be held liable in his individual capacity on a
wrongful discharge claim. Defendants claim that common law wrongful discharge claims
can be brought only against employers and cannot be brought against individuals under a
supervisory theory of liability. Hrosik v. Latrobe Steel Co., No. 94-1361, 1995 WL 456212
(W.O. Pa. Apr. 25, 1995); Leslie v. Philadelphia 1976 Bicentennial Corp., 332 F. Supp. 83,
93 (E.D. Pa. 1971) (saying it is "necessary that [the plaintiff] allege that [individual
defendants] acted in their individual capacities, as opposed to corporate capacities."). See
also Brennan v. Cephalon, Inc., No. 04-3241, 2005 WL 2807195 (D.N.J. Oct. 25, 2005).
Here, every fact alleged about David has been about him acting in his corporate capacity as
owner of DES, so based on Brennan, Hrosik, and Leslie, the Court will dismiss him in his
individual capacity.
In Pennsylvania, an employer may discharge an at-will employee for any reason
whatsoever, subject to a few narrow exceptions. An employee may bring a cause of action
for atermination of that employment "only in the most limited circumstances, where the
termination implicates a clear mandate of public policy." Weaver v. Harpster, 975 A.2d 555,
563 (Pa. 2009). Pennsylvania courts have recognized a public policy exception to the at-will
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employee doctrine when an employee flies an unemployment compensation claim.
Weaver, 975 A.2d at 564 (citing Highhouse v. AveI}' Trans., 660 A.2d 1374, 1378 (Pa.
Super. Ct. 1995) ("if the ... employer discharged [plaintifl] because he had made a claim for
unemployment compensation during a period when he was not working and earning
income, the discharge will constitute a violation of public policy and will support atort claim
for wrongful discharge.").
Defendants attempt to distinguish Highhouse by saying that Plaintiff was terminated
before she filed her claim for unemployment benefits, because she allegedly quit or was
terminated on June 28, 2008, and she filed for unemployment benefits on July 1, 2008.
Thus, she could not have been terminated in retaliation for something that had not yet
occurred. However, there is conflicting evidence in the record as to when and whether
Plaintiff was terminated. Steven told the Unemployment Compensation Board that Plaintiffs
last day had been on June 28. (Employer Questionnaire, Doc. 70, Ex. Q). However, in a
letter to the Board, Steven said that she went on maternity leave on July 1,2008 and
subsequently informed DES that she was not going to return to work. (Doc. 70, Ex. V).
Meanwhile, Plaintiffs Petition for Appeal indicated that David terminated her by phone on
August 29. (Doc. 62, Ex. M, Petition for Appeal from Unemployment Compensation Board).
Because Plaintiffs actual termination date is a material fact that is in dispute, the
ruling in Highhouse does not justify an award of summary judgment for Defendants.
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Therefore, the Court will dismiss David from this count but will deny Defendants' motion for
summary judgment on it.
f. Fraud/tortious misrepresentation
Plaintiff claims David suggested she go on unemployment (Gentile Dep., Doc. 62,
Ex. E, 89:2-90:7, 94:2-9), whereas David claims that Plaintiff offered to go on
unemployment instead oftaking maternity leave (DW2 Dep., Doc. 70, Ex. 8,70:10-20).
Despite this dispute of facts, as a matter of law, Plaintiff does not have a cause of action.
Plaintiff was an at-will employee, and as such, has no cause of action for relying on
David's promises that he would re-hire her on October 1, 2008. See Paul v. Lankenau
Hosp., 569 A.2d 346 (Pa. 1990); see a/so Brethwaite v. Cincinnati Milacron Marketing Co.,
No. 94-3621, 1995 WL 232519 (E.D. Pa. Apr. 19, 1995) ("Since a claim of negligent
misrepresentation requires that a plaintiff have justifiably relied on the alleged
misrepresentation, and an employer's promise is not something which an employee can
justifiably rely upon when the employment relationship is at will, this claim must fail.").
There are a few cases that support Plaintiffs position. See, e.g., Mulgrew v. Sears
Roebuck & Co., 868 F. Supp. 98, 104 (E.D. Pa. 1994) (allowing fraudulent
misrepresentation claim to stand). However, Brethwaite distinguished Mulgrew because the
court in Mulgrew did not discuss the at-will status of the plaintiff before determining that the
plaintiff could move forward on the claim for fraud. The Court doubts that Pennsylvania
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courts would recognize Plaintiffs 'fraud count as a valid claim based on her status as an at
will employee, so the Court will grant the motion for summary judgment on this count.
V. Conclusion
For the above reasons, the Court will grant in part and deny in part Defendants'
Motion to Strike and Motion for Summary Judgment.
As agreed to by the parties, the relevant portions of paragraphs 15,21,25, and 33
are stricken from Plaintiffs Answer to the Statement of Facts. (Doc. 74, Ex. B). To the
extent that paragraphs 16, 19,27,29,31,32,34,37,40,44,49,50,51,52,54,55,56,60,
64, 66 and the remainder of paragraphs 15, 25, and 33 are inflammatory, irrelevant, or
merely opinions or conclusions of law, the Court assigns no evidentiary value to them.
The Court also grants summary judgment in favor of Defendants on Count I
(pregnancy discrimination), Count III (tortious interference against Defendants DES and
David Wengerd), Count IV (notice pay and with respect to Steven Wengerd), Count V(with
respect to David Wengerd from the wrongful discharge claim), and Count VI (fraud).
The claims remaining for trial are: Count I: sexual harassment based on gender and
hostile work environment for failure to take prompt immediate action, Count II: retaliation for
engaging in protected activity, Count IV: WPCL and FLSA claims for maternity leave,
overtime, and time worked, and Count V: wrongful discharge under public policy. The
remaining defendants are DES, CQH, and CDH on all counts, except for Count IV under
which David also remains as a defendant. A separate Order follows.
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