Rosencrans v. Quixote Enterprises, Inc. et al

Filing 12

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, DefendantS Motion to Dismiss Plaintiffs Complaint (Doc. 8) is granted in part and denied in part. The motion is granted insofar as the quid pro quo sexual harassme nt claim is dismissed from Count One and Count Two. The motion is denied insofar as Plaintiffs disparate treatment claims against Defendant Quixote and Defendant Morrow go forward. Because the Court cannot conclude that allowing Plaintiff an opportu nity to amend her complaint regarding her quid pro quo sexual harassment claim would be futile, Grayson, 293 F.3d at 108, Plaintiff will be granted the opportunity to file an amended complaint within fourteen (14) days of the date of this Order.An appropriate Order is filed simultaneously with this Memorandum re 8 First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Quixote Enterprises, Inc., Charles Eric Morrow Signed by Honorable Richard P. Conaboy on 3/27/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KYMBERLEY COLE ROSENCRANS,

:
:CIVIL ACTION NO. 3:17-CV-55
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
QUIXOTE ENTERPRISES INC.
:
(D/B/A “Adult World”)
:
and
:
CHARLES ERIC MORROW,
:
:
Defendants.
:
:
___________________________________________________________________
MEMORANDUM
Defendant’S Motion to Dismiss Plaintiff’s Complaint (Doc. 8)
is pending before the Court.

Defendant requests that the Court

dismiss Plaintiff’s Complaint in its entirety pursuant to Federal
Rule of Civil Procedure 12(b)(6).

(Doc. 9 at 2.)

For the reasons

discussed below, the Court concludes Defendant’s motion is properly
granted in part and denied in part.
I. Background
Plaintiff states in her Complaint that Defendant Quixote
Enterprises Inc., (“Adult World”) is in the adult entertainment
business with approximately eighteen retail establishments in
Pennsylvania, New York, and New Jersey.

(Doc. 1 ¶ 10.)

Morrow is the principal officer in charge of Adult World.

Defendant
(Id. ¶

11.)
Plaintiff had known Defendant Morrow since approximately 2009,
and had provided cleaning services to him.

(Id. ¶ 19.)

She

alleges that she and Defendant Morrow became close friends and had
a sexual relationship “earlier in 2015," i.e., sometime before
October 2015.

(Id. ¶¶ 12, 19.)

In October 2015, Defendant Morrow offered Plaintiff a position
managing six stores at a salary of $35,000, with fringe benefits
including a vehicle, gas card, 401K plan and health insurance.
(Id. ¶ 12.)

Plaintiff accepted the job offer and began working for

Adult World on or about November 9, 2015.

(Id. ¶¶ 13, 15.)

Plaintiff got married on Sunday, November 15, 2015.
15.)

(Id. ¶

The following week she worked Tuesday through Friday as

scheduled.

(Id.)

On Friday, November 20, 2015, another manager told Plaintiff
“that she wasn’t working out and that they decided to give another
chance to the other girl Plaintiff was supposed to be replacing.”
(Id. ¶ 17.)

The manager was allegedly acting on instruction from

Defendant Morrow who told Plaintiff the same thing via text, adding
“you have a new husband.”

(Id. ¶¶ 17-18.)

Plaintiff adds that

male employees who got married were not fired and Defendant
“contrived specific reasons for firing Plaintiff” in response to
the EEOC charge.

(Id. ¶¶ 21, 22.)

Plaintiff filed her Complaint in this Court on January 9,
2017.

(Doc. 1.)

The Complaint contains two counts: Count One for

Sex Discrimination in violation of Title VII and the PHRA against
Defendant Adult World; and Count Two for Aiding and Abetting Sex
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Discrimination in violation of the PHRA against Defendant Morrow.
(Doc. 1 at 5-6.)
Defendants filed the instant motion on February 14, 2017,
accompanied by a supporting brief.

(Docs. 8, 9.)

2017, Plaintiff filed an opposing brief.

On February 21,

(Doc. 10.)

With the

filing of Defendants’ reply brief (Doc. 11) on February 26, 2017,
this matter was fully briefed and became ripe for disposition.
II. Discussion
A. Motion to Dismiss Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6), the
reviewing court may dismiss a complaint for “failure to state a
claim upon which relief may be granted.”

Detailed pleading is not

required–-“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a
short and plain statement of the claim showing that the pleader is
entitled to relief,’ in order to ‘give fair notice of what the . .
. claim is and the grounds upon which it rests,’ Conley v. Gibson,
355 U.S. 41, 47 . . . (1957).”
U.S. 544, 555 (2007).

Bell Atlantic Corp. v. Twombly, 550

In Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009), the Court noted that, although Rule 8 does not require
detailed factual allegations, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”
Twombly, 550 U.S. at 555).

Id. (citing

Iqbal also reiterated the Twombly

guidance that “[a] pleading that offers ‘labels and conclusions’ or
‘a formulaic recitation of the elements of a cause of action will
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not do.’ 550 U.S. at 555 . . .

Nor does a complaint suffice if it

tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’ Id. at 557.”

556 U.S. at 678.

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.”
[Twombly, 550 U.S.] at 570, 127 S. Ct. 1955.
A claim has facial plausibility when the
plaintiff pleads factual content that allows
the Court to draw the reasonable inference
that the defendant is liable for the
misconduct alleged. Id., at 556, 127 S.Ct.
1955. The plausibility standard is not akin
to a “probability requirement,” but it asks
for more than a sheer possibility that a
defendant has acted unlawfully. Ibid. Where
a complaint pleads facts that are “merely
consistent with” a defendant’s liability, it
“stops short of the line between possibility
and plausibility of ‘entitlement to relief.’”
Id., at 557, 127 S. Ct. 1955 (brackets
omitted).
556 U.S. at 678.
Pursuant to Twombly and Iqbal, the Court of Appeals for the
Third Circuit set out three steps required of a court reviewing the
sufficiency of a claim in Connelly v. Lane Constr. Corp., 809 F.3d
780, 787 (3d Cir. 2016).
First, it must “tak[e] note of the elements
[the] plaintiff must plead to state a claim.”
Iqbal, 556 U.S. at 675, 129 S.Ct. 1937.
Second, it should identify allegations that,
“because they are no more than conclusions,
are not entitled to the assumptions of
truth.” Id. at 679, 129 S.Ct. 1937. See
also Burtch v. Milberg Factors, Inc., 662
F.3d 212, 224 (3d Cir. 2011) (“Mere
restatements of the elements of a claim are
not entitled to the assumption of truth.”
4

(citation and editorial remarks omitted)).
Finally, “[w]hen there are well-pleaded
factual allegations, [the] court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at
679, 129 S.Ct. 1937.
809 F.3d at 787.

Importantly, a Plaintiff is not required to

establish the elements of a prima facie case–-“the post-Twombly
pleading standard ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of the
necessary element[s].’”

Connelly, 809 F.3d at 789 (quoting

Twombly, 550 U.S. at 556); see also Phillips v. City of Allegheny,
515 F.3d 224, 234 (3d Cir. 2008).
Finally, the district court must extend the plaintiff an
opportunity to amend before dismissing a complaint unless amendment
would be inequitable or futile.

See Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
B.

Defendant’s Motion
Defendants maintain that Plaintiff’s claims for quid pro quo

sexual harassment and disparate treatment in Count One must be
dismissed because the claims are supported only by unsubstantiated
allegations and are unsupported by proof or additional substance.
(Doc. 9 at 3-4.)

Defendants similarly contend that Count Two

against Defendant Morrow must be dismissed because Plaintiff’s
Complaint does not state that Defendant Morrow had anything to do
with her termination or provide sufficient facts to state a cause
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of action.
1.

(Doc. 9 at 4.)

Corporate Defendant Claims
In Count One, Plaintiff claims Defendant Adult World violated

Title VII and the Pennsylvania Human Relations Act (“PHRA”).

As

noted above, Defendants maintain Count One must be dismissed
because Plaintiff has not pled facts which show she is entitled to
relief on the bases alleged.

(Doc. 9 at 2-4.)

The Court concludes

Defendants have not met their burden of showing that Plaitniff’s
disparate treatment claim must be dismissed.
The provisions of the PHRA are generally construed as
coextensive with their federal counterparts, in this instance with
the federal anti-discrimination statutes, unless a difference in
the applicable statutory language indicates a different result is
warranted.

Fogleman v. Mercy Hospital, 283 F.3d 561, 567 (3d Cir.

2002); Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996);
Toth v. California University of Pennsylvania, 844 F. Supp. 2d 611,
626 (W.D. Pa. 2012).

For the purposes of the review of Count One,

the Court refers only to federal law as no distinction between
Title VII and the PHRA is warranted regarding the claims alleged
therein.
Title VII’s anti-discrimination provision is codified at 42
U.S.C. § 2000e-2(a) which explains that it is
an unlawful employment practice for an
employer-(1) to fail or refuse to hire or to
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discharge any individual, or otherwise to
discriminate against any individual with
respect to his compensation, terms,
conditions, or privileges of employment,
because of such individual’s race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his
employees or applicants for employment in any
way which would deprive or tend to deprive
any individual of employment opportunities or
otherwise adversely affect his status as an
employee, because of such individual’s race,
color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a).
The elements necessary to prove a discrimination claim vary
depending on the type of discrimination alleged and the theory upon
which a plaintiff proceeds.

“A Title VII plaintiff can make out a

claim for discrimination ‘under either the pretext theory set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973), or
the mixed-motive theory set forth in Price Waterhouse v. Hopkins,
490 U.S. 228 . . . (1989), under which a plaintiff may show that an
employment decision was made based on both legitimate and
illegitimate reasons.’”

Connelly, 809 F.3d at 787 (quoting Makky

v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008)).
Under either theory, the plaintiff must
show that her protected status was a factor
in the employer’s challenged action. The
difference is in the degree of causation that
must be shown: in a “mixed-motive” case, the
plaintiff must ultimately prove that her
protected status was a “motivating” factor,
whereas in a non mixed-motive or “pretext”
case, the plaintiff must ultimately prove
that her status was a “determinative” factor.

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Connelly, 809 F.3d at 788 (quoting Makky, 541 F.3d at 214-20).
A complaint need not specify which theory a plaintiff plans to
proceed under as the distinction between the types of cases “lies
in the kind of proof the employee produces on the issue of bias.”
Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1097 (3d Cir.
1995).

Thus, when considering a motion to dismiss, the reviewing

court assumes that the plaintiff may proceed under either theory
for purposes of noting the elements of a discrimination claim.
Connelly, 809 F.3d at 788.

For example in a disparate treatment

claim, a plaintiff could ultimately prevail by proving that
protected status was either a “motivating” or “determinative” fact
in the employer’s adverse employment action.

Id. at 789.

When considering the elements necessary to defeat a motion to
dismiss, The Third Circuit Court of Appeals “has repeatedly
emphasized that the requirements of the prima facie case are
flexible.”

Pivirotto v. Innovative Systems, Inc., 191 F.3d 344,

357 (3d Cir. 1999).

“[T]he elements of a prima facie case depend

on the facts of the particular case.”

Jones v. Sch. Dist. of

Phila., 198 F.3d 403, 411 (3d Cir. 1999).
a.

Quid Pro Quo Sexual Harassment
In Plaintiff’s Complaint, Count One alleges violations of

Title VII and the PHRA by Defendant Adult World and includes the
assertion that “Defendant fired Plaintiff after she married because
Morrow wanted her to be available for a sexual relationship during
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the course of her employment.
discrimination.”

That’s implicit quid pro quo sex

(Doc. 1 ¶ 24.)

The Court concludes Plaintiff has

not properly pled this claim.
Title VII’s protections against gender-based discrimination
include “the prohibition on an employer’s carrying out threats in
retaliation for an employee’s responses to the employer’s sexual
harassment.”

Kress v. Birchwood Landscaping, No. 3:05-CV-566, 2007

WL 800996, at *16 (M.D. Pa. Mar. 14, 2007) (citing Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998)).

In this vein,

a plaintiff can make out a claim for quid pro quo sexual harassment
by showing that a tangible employment action resulted from an
employee’s response to unwelcome advances of a sexual nature.
Ellerth, 524 U.S. at 753-54; Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 281-82 (3d Cir. 2000).
In determining whether Plaintiff has sufficiently pled a claim
for quid pro quo sexual harassment, pursuant to Connelly, the Court
first looks to the elements of this claim.

To make out a claim for

quid pro quo sexual harassment a plaintiff must show 1) unwelcome
advances of a sexual nature; and 2) that “her response to these
advances was subsequently used as a basis for a decision about
compensation, [terms, conditions, or privileges of employment].”
Farrell, 206 F.3d at 281-82; see also Kress v. Birchwood
Landscaping, No. 3:05-CV-566, 2007 WL 800996, at *16 (M.D. Pa. Mar.
14, 2007); Pergine v. Penmark Management Co., 314 F. Supp. 2d 485,
9

490-91 (E.D. Pa. 2004).

“In other words, Plaintiff must show that

‘a tangible employment action resulted from a refusal to submit to
a supervisor’s sexual demands.’”

Wilson v. Checker Drive-In

Restaurants, Inc., Civ. A. No. 12-5365, 2013 WL 2256133, at *4
(E.D. Pa. May 23, 2013) (quoting Ellerth, 524 U.S. at 753).
As argued by Defendants, Plaintiff “has not discussed any
incident or pled any facts that show Defendant Morrow requested
sexual favors during her employment or that Defendant Morrow made
either explicit or implicit sexual suggestions as a term or
condition of Plaintiff’s employment.”

(Doc. 9 at 3.)

Plaintiff

presents a conclusory narrative in support of plausibility, but she
does not cite a single incident of an unwelcome advance made by
Defendant Morrow.1

(Doc. 10 at 4.)

Plaintiff stated in her

Complaint that “Morrow believed that by hiring Plaintiff, he was
also entitled to resume a sexual relationship with Plaintiff when
he wanted it.

Plaintiff’s marriage thwarted his plan, and so she

was cast aside.”

(Doc. 1 ¶ 20.)

As presented, this is a

conclusory statement not entitled to the assumption of truth

1

A relationship that is consensual at its inception does not
necessarily preclude a quid pro quo claim by an employee, if the
employee later attempts to break off the relationship and suffers
an adverse employment action as a result. See Hartman v. Sterling,
Inc., No. 01-2630, 2003 WL 22358548, at *7 (E.D. Pa. 2003).
Although Plaintiff alleges that she and Defendant Morrow had a
consensual sexual relationship at some time in 2015 prior to her
employment and marriage (Doc. 1 ¶ 19), Plaintiff has not pled facts
which show the legal relevance of that relationship to the claims
asserted.
10

pursuant to Iqbal, 556 U.S. at 679–-the statement gives no rise to
an indication that Defendant Morrow made unwelcome advances of a
sexual nature to which Plaintiff negatively responded.
206 F.3d at 281-82.

Farrell,

Thus, the Court gets to the final stage of the

required analysis with no well-pleaded factual allegations to
support Plaintiff’s entitlement to relief on this claim.

Because

Plaintiff has pled no facts supporting essential elements of a quid
pro quo sexual harassment claim and because Plaintiff would have
knowledge of such facts, Plaintiff has not “raised a reasonable
expectation that discovery will reveal evidence of the necessary
element[s].”

Connelly, 809 F.3d at 789.

Therefore, Plaintiff’s

quid pro quo sexual harassment claim is properly dismissed.
b.

Disparate Treatment
Plaintiff also alleges in Count One that “[m]en who married

were not promptly fired just because they got married.

Only

Plaintiff was.

That’s disparate treatment sex discrimination.”

(Doc. 1 ¶ 25.)

The Court concludes Plaintiff has satisfied the

pleading standards for this claim.
As noted above, a plaintiff could ultimately prevail on a
disparate treatment claim by proving that protected status was
either a “motivating” or “determinative” fact in the employer’s
adverse employment action.

Connelly, 809 F.3d at 789.

Thus, at

the motion to dismiss stage she would have to plead facts
sufficient to give rise to the reasonable expectation that she

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could make such a showing.

Id.

Similarly, a prima facie case for

disparate treatment requires a plaintiff to show she (1) was a
member of a protected class, (2) was qualified for the position,
and (3) another, not in the protected class was treated more
favorably.

Foxworth v. Pennsylvania State Police, 228 F. App’x

151, 157 (3d Cir. 2007) (not precedential) (citing McDonnell
Douglas, 411 U.S. at 802-03).
Here Plaintiff’s claim that she was promptly fired when she
got married and men were not (Doc. 1 ¶ 25) is a claim that she was
treated less favorably than men because of her status as a woman.
Plaintiff argues that if she “proves she was fired for getting
married, and that men who got married were not, this would
implicate 42 U.S.C. § 2000e-2(a)(1) for sex discrimination.

This

is plausible at this stage, given Morrow’s reference to Plaintiff’s
‘new husband.’” (Doc. 10 at 4 (citing Doc. 1 ¶ 18).)

Unlike the

quid pro quo claim where no mention was made in the Complaint of a
necessary element of the claim, here Plaintiff’s complaint avers
that she was fired five days after she was married, that the fact
of her marriage was mentioned in a text from Defendant Morrow
regarding her termination, and that men who got married were not
fired.

(Doc. 1 ¶¶ 16-18, 21.)

These are factual allegations and

the Court is to assume their veracity at this stage of the
proceedings.

Iqbal, 556 U.S. at 679.

Thus, the Court must

determine whether they plausibly give rise to an entitlement to

12

relief.

Id.

Here Plaintiff has satisfied the plausibility

standard with the averments set out above because, if proven true,
she would be in a position to show that her status as a woman was a
“motivating” or “determinative” fact in the decision to terminate
her employment.

See Connelly, 809 F.3d at 789.

Defendants’ arguments to the contrary are not persuasive for
several reasons.

First, Defendants misconstrue Plaintiff’s claim,

characterizing it as a claim that she was subject to disparate
treatment because “no other male married employees were
terminated.”

(Doc. 9 at 4.)

Clearly, Plaintiff’s claim has to do

with a change in marital status.

(Doc. 1 ¶¶ 16-18, 21.) Second,

Defendants’ statement that “Quixote has terminated other married
employees during the course of its business, both male and female”
(Doc. 9 at 4), suffers from a similar characterization problem--the
fact that both married men and married women had been terminated in
the course of their employment with Defendant Quixote does not
refute the assertion that a woman who was unmarried at the time she
was hired and was fired shortly after she was married was treated
differently than men who were unmarried when they were hired and
subsequently were married and not promptly terminated.

Moreover,

conflicting factual assertions are not properly the subject of a
motion to dismiss.

Third, Defendant incorrectly states that

“[p]lausible is not enough to establish a prima facie case to
support an action for sex discrimination.”

13

(Doc. 11 at 2.)

This

unsupported assertion is clearly in conflict with the standards
governing a motion to dismiss set out above.

Finally, Defendants’

assertion that Plaintiff “has failed to prove that she was
qualified for the position but otherwise fired” (Doc. 11 at 3), is
confusing a prima face case evidentiary standard with a pleading
requirement.

See Connelly, 809 F.3d at 789.

Plaintiff’s factual

allegations, including that she was hired by Defendant Morrow for
the managerial position after having known him for over five years
(Doc. 1 ¶¶ 12, 19) is enough to raise a reasonable expectation that
discovery will reveal evidence that Plaintiff was at some point
deemed qualified for the position.

See Twombly, 550 U.S. at 556.

Because Defendants have not shown that Plaintiff failed to
state a claim for disparate treatment discrimination, this claim
properly goes forward.
2.

PHRA Claims
With Count Two Plaintiff claims Defendant Morrow violated the

PHRA because “he acted in concert with Defendant Adult World, aided
Defendant Adult World and abetted Defendant Adult World in
discriminating against Plaintiff on account of her gender” as set
out previously in the Complaint.

(Doc. 1 ¶ 31.)

While Defendants’

arguments in support of dismissal of Count One were spare at best,
the Court concludes Defendants’ one-paragraph substantive argument
in support of dismissal of Count Two (Doc. 9 at 4) is inadequate to
carry the burden of showing that dismissal of Count Two in its

14

entirety on substantive grounds is proper.

However, consistency

and clarity require a brief discussion of Defendant Morrow’s
liability on the bases asserted.
The PHRA makes it unlawful “[f]or any person, employer,
employment agency, labor organization or employe [sic], to aid,
abet, incite, compel or coerce the doing of any act declared . . .
to be an unlawful discriminatory practice . . . or to attempt,
directly or indirectly, to commit any act declared . . . to be an
unlawful discriminatory practice.”

42 Pa. Stat. § 955(e).

Thus,

under the PHRA there are circumstances where an individual may be
held liable under the PHRA where he or she may not be held liable
under Title VII.

Dici v. Commonwealth of Pennsylvania, 91 F.3d

542, 552-53 (3d Cir. 1996).
Because Count Two relies on the same facts and allegations as
Count One (Doc. 1 ¶ 31), and because Plaintiff alleges that Morrow
was involved in the decision to terminate her and communicated
about the termination via text message (Doc. 1 ¶¶ 17, 18),
Plaintiff has pled Defendant Morrow’s involvement in the adverse
employment action.

For the reasons the Court determined that

Plaintiff’s disparate treatment claim against Defendant Quixote
goes forward, this claim properly goes forward against Defendant
Morrow.

However, the determination that Plaintiff pled no facts to

support her quid pro quo sexual harassment claim, applies to
Defendant Morrow as well.

Therefore, Count Two goes forward only

15

as to Plaintiff’s disparate treatment claim.
To the extent Defendants may be attempting to present a
procedural basis to dismiss Count Two (Doc. 9 at 4-5), any such
argument is not sufficiently presented to allow analysis.
3.

Punitive Damages
Defendants assert that Plaintiff demands punitive damages

which are not available under the PHRA.

(Doc. 9 at 5.)

Plaintiff

responds that she does not seek punitive damages under the PHRA.
(Doc. 10 at 5.)

Because Plaintiff’s Complaint shows that she seeks

punitive damages “as permitted by Title VII,” Defndants’ request
regarding punitive damages is deemed moot.
III. Conclusion
For the reasons discussed above, Defendant’S Motion to Dismiss
Plaintiff’s Complaint (Doc. 8) is granted in part and denied in
part.

The motion is granted insofar as the quid pro quo sexual

harassment claim is dismissed from Count One and Count Two.

The

motion is denied insofar as Plaintiff’s disparate treatment claims
against Defendant Quixote and Defendant Morrow go forward.
Because the Court cannot conclude that allowing Plaintiff an
opportunity to amend her complaint regarding her quid pro quo
sexual harassment claim would be futile, Grayson, 293 F.3d at 108,
Plaintiff will be granted the opportunity to file an amended
complaint within fourteen (14) days of the date of this Order.

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An appropriate Order is filed simultaneously with this
Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Court
DATED: March 27, 2017

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