Rorke v. Aubrey Alexander Toyota et al
Filing
24
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 12/22/16. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KIM RORKE,
Plaintiff,
v.
AUBREY ALEXANDER TOYOTA,
MICHAEL ANDRETTA,
Defendants.
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Case No. 4:16-CV-0219
Judge Brann
MEMORANDUM OPINION
December 22, 2016
I.
BACKGROUND
Kim Rorke, hereinafter “Rorke,” filed a three count complaint against both
her former employer, Aubrey Alexander Toyota, hereinafter “Aubrey Alexander,”
and former supervisor, Michael Andretta, hereinafter “Andretta.” Counts I and II
assert claims of retaliation under Title VII and the Pennsylvania Human Relations
Act. Count III alleges intentional infliction of emotional distress. Defendants filed
a motion to dismiss, and upon careful review of the pleadings and the briefs both in
1
support and against the motion, I will grant the motion to dismiss. However, I will
provide Rorke with one final opportunity to amend her complaint.1
II.
MOTION TO DISMISS LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a motion
to dismiss for “failure to state a claim upon which relief can be granted.” Such a
motion “tests the legal sufficiency of a pleading” and “streamlines litigation by
dispensing with needless discovery and factfinding.”2 “Rule 12(b)(6) authorizes a
court to dismiss a claim on the basis of a dispositive issue of law.”3 This is true of
any claim, “without regard to whether it is based on an outlandish legal theory or
on a close but ultimately unavailing one.”4
Beginning in 2007, the Supreme Court of the United States initiated what some
scholars have termed the Roberts Court’s “civil procedure revival” by significantly
tightening the standard that district courts must apply to 12(b)(6) motions.5 In two
landmark decisions, Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal,
the Roberts Court “changed . . . the pleading landscape” by “signal[ing] to lower-
1
Rorke has amended her pleadings once as a matter of course, and the action is now proceeding
on a first amended complaint.
2
In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.)
(quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook,
J.)). Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
3
Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).
4
Neitzke, 490 U.S. at 327.
5
Howard M. Wasserman, THE ROBERTS COURT AND THE CIVIL PROCEDURE REVIVAL, 31 Rev.
Litig. 313 (2012).
2
court judges that the stricter approach some had been taking was appropriate under
the Federal Rules.”6 More specifically, the Court in these two decisions “retired”
the lenient “no-set-of-facts test” set forth in Conley v. Gibson and replaced it with a
more exacting “plausibility” standard.7
Accordingly, after Twombly and Iqbal, “[t]o 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.’”8 “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.”9 “Although the
plausibility standard does not impose a probability requirement, it does require a
pleading to show more than a sheer possibility that a defendant has acted
unlawfully.”10 Moreover, “[a]sking for plausible grounds . . . calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of
[wrongdoing].”11
The plausibility determination is “a context-specific task that requires the
6
550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20.
Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that
Twombly retired the Conley no-set-of-facts test”).
8
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
9
Iqbal, 556 U.S. at 678.
10
Connelly v. Lane Const. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (internal quotations
and citations omitted).
11
Twombly, 550 U.S. at 556.
7
3
reviewing court to draw on its judicial experience and common sense.”12 No matter
the context, however, “[w]here 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.’”13
When disposing of a motion to dismiss, a court must “accept as true all factual
allegations in the complaint and draw all inferences from the facts alleged in the
light most favorable to [the plaintiff].”14 However, “the tenet that a court must
accept as true all of the allegations contained in the complaint is inapplicable to
legal conclusions.”15 “After Iqbal, it is clear that conclusory or ‘bare-bones’
allegations will no longer survive a motion to dismiss.”16 “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”17
As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:
Under the pleading regime established by Twombly and Iqbal, a
court reviewing the sufficiency of a complaint must take three
steps. First, it must tak[e] note of the elements [the] plaintiff must
12
13
14
15
16
17
Iqbal, 556 U.S. at 679.
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).
Iqbal, 556 U.S. at 678 (internal citations omitted).
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).
Iqbal, 556 U.S. at 678.
4
plead to state a claim. Second, it should identify allegations that,
because they are no more than conclusions, are not entitled to the
assumption of truth. 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.18
The Court now turns to the specifics of the instant matter.
III.
DISCUSSION
a. FACTS
Taking the facts alleged in the complaint as true, as I must when considering
a motion to dismiss, the narrative that unfolds is as follows:
Rorke, a female, was a sales consultant working for Aubery Alexander. She
worked for the dealership from August 6, 2008 through February 9, 2015. She
claims constructive discharge due to a sexually hostile environment.
Rorke asserts that her “job went smoothly” before Andretta was hired as the
general manager of the dealership in May or June of 2012.19 Rorke asserts that by
January 2013, “Andretta had become an intimidating and degrading presence with
a particular hostility toward women.”
Rorke alleges the following as evidence of discrimination:
18
19
Connelly, 809 F.3d at 787 (internal quotations and citations omitted).
It is not clear from the compliant precisely when Andretta was hired.
5
¶ 22 In or around November, 2013 he made Plaintiff deliver a car to
Benton, PA an area of Pennsylvania unfamiliar to her.
¶ 23. Plaintiff told Andretta she was uneasy about making the trip.
¶ 24. Because Andretta forced Plaintiff to make the delivery, she had
a severe anxiety attack and had to phone David Catlin and Mike
Rorke for help to come pick her up at the location in Northumberland,
Pennsylvania.
¶ 25. Plaintiff could not complete the delivery.
¶ 26. David Catlin took Plaintiff to her house, and the next day she
had to go to the doctor when medication was dispensed and severe
anxiety diagnosed.
¶ 27. The anxiety was a direct consequence of having worked for
Andretta for almost a year.
¶ 28. Because of the impact of the attack Plaintiff was afraid to drive
a vehicle for 3 weeks.
¶ 29. Prior to Andretta coming on board, Plaintiff never had any
emotional psychological issues.
¶ 30. Throughout 2013-2014 both in Plaintiff’s office and in a
common sales area, Andretta would use profanity and intimidate the
6
sales associates by slamming filing cabinets, throwing items and using
profanity and degrading remarks.
¶ 31. In morning meetings, Andretta would humiliate sales associate,
David Catlin, while degrading women at the same time.
¶ 32. Often the brunt of Andretta’s jokes towards David Catlin
involved David’s sexual orientation and comments involving David’s
ex-wife and his then girlfriend.
¶ 33. For example Andretta would ask David if he showered with
both his ex-wife and his girlfriend at the same time.
¶ 34. When Bryan Sage, the business manager, was employed
Andretta would often refer to his wife as a “Crazy Bitch.”
¶ 35. The phrase “crazy bitch” was said regularly around Plaintiff and
other employees.
¶ 36. Andretta called female employee Shannon Fink a “Pop Tart”
which had a sexual and degrading meaning.
¶ 37. Andretta would sometimes page her over the loud speaker
using this nick name.
¶ 38. Throughout Plaintiff’s employment, Andretta would
occasionally refer to her as “Toots” and then say, “Oh, I can get in
trouble for calling you that can’t I?”
7
¶ 39. Andretta often referred to all of the employees as “Ass
Clowns” and told them to “grow a set of balls” and tell the customer
how it was going to be.
¶ 40. Andretta consistently ‘fined’ Plaintiff and other employees for
various instances such as not wearing a name tag in the morning.
¶ 41. These “fines” were used as intimidation and went into a jug for
a personal beer fund and lunches.
¶ 42. Various sales managers and associates knew this money was
used for beer.
¶ 43. Andretta would use expletives like “Wake the fuck up” and
“What the fuck is wrong with you” in morning meetings to the sales
staff as a group.
¶ 44. In or around February 2014, he physically confronted another
manager, Dennis Christiana, grabbing him by this shirt and forcing
him through the back door while verbally abusing him in the process.
¶45. In or around late summer of 2014, Andretta took one of
Plaintiff’s customers who was properly documented and gave them to
a male associate as a form of power and intimidation.
8
¶ 46. The male associate never had anything to do with the sale and
his transfer of this customer went directly against the code of sales
conduct.
¶ 47. The transfer event put so much stress and anxiety on Plaintiff
that evening she had to leave work at 6:00 p.m. because anxiety
overcame her.
¶ 48. Andretta told Plaintiff that if she left, “Don’t come back until I
call you.”
¶ 49. In effect, Plaintiff was suspended from employment because
she protested his illegal actions and became sick because of them.
¶ 50. He texted Plaintiff two days later and said to come back at this
time.
¶ 51. In or around the fall of 2014, Plaintiff was standing next to
Andretta when he was working a deal for another sales associate
involving a husband and wife.
¶ 52. Andretta became increasingly frustrated with the deal and said
to a group of employees including Plaintiff that there is too much
“P.O.T.P.” at that table.
¶ 53. Plaintiff questioned what that meant, and Andretta said to
Plaintiff “Don’t worry you have plenty of it” while laughing.
9
¶ 54. Sales Manager, Matt Burd, looked at Plaintiff and put his head
down with embarrassment.
¶ 55. Another sales associate, Chad Scholl informed Plaintiff that
when Andretta used “P.O.T.P.” it was known among other sales
associates to mean “Power of the Pussy”, clearly a vulgar and obscene
reference.
¶ 56. A sign with P.O.T.P. on it actually hung in the Defendant’s
Internet office, which Plaintiff noticed in February 2015.
¶ 57. In or around November 2014, a female employee, Ashley Fry
quit due to conditions and hostile environment he had created.
¶ 58. In or around December 2014, per the instructions of Sales
Manager, Dennis Christiana, Plaintiff handed Andretta a request for
vacation.
¶ 59. Andretta took the piece of paper with Plaintiff’s request, threw
it, used profanity and told Sales Manager Dennis Christiana “It wasn’t
the Dennis Christiana show, and Mike Andretta runs the show”.
¶ 60. Plaintiff’s request was within company policy.
¶ 61. During a morning meeting, Andretta made a racial comment
asking sales associate, Rick Shover, “Which family got the Weis gift
card, the white family or black family.?”
10
¶ 62. Andretta did this because Shover had a wife and girlfriend,
each of a different color.
¶ 63. In or around January 2015, during another morning meeting,
Andretta made several degrading comments towards women including
asking sales associate Rick Shover, “Who did you sleep with last
night, your wife or your girlfriend.”
¶ 64. On January 1, 2015 Plaintiff was entitled to two weeks paid
vacation, plus one personal day.
¶ 65. Plaintiff made a request to Andretta.
¶ 66. Andretta used intimidation and power to force Plaintiff to only
collect one week’s vacation in January and she had to wait to collect
the second week in February.
¶ 67. Plaintiff’s request for both weeks complied with company
policy and should have been paid in one sum.
¶ 68. Andretta set a new verbal policy in place only allowing
employees to sign out for 20 minutes to eat lunch during a full 11-12
hour work day.
¶ 69. Plaintiff feared punishment and retaliation.
¶ 70. In January and until her last day, Plaintiff conformed to
Andretta’s lunch policy.
11
¶ 71. At the end of January 2015, Andretta held a Friday morning
meeting with the entire sales team when he referred to them as being
“nigger rich”.
¶ 72. Andretta told an African American employee, Kendall Corbett
to cover his ears prior to making this comment.
¶ 73. In addition, in the same month, Andretta took away the salary
Plaintiff had the last several years which was an integral part of her
pay plan.
¶ 74. When Plaintiff questioned Andretta about it, he could not give
Plaintiff a clear reason as to why it had been taken away – other than
to ask Plaintiff why she deserved the pay plan.
¶ 75. Plaintiff told Andretta she was a good employee who sold a lot
of cars, she came to work on a regular basis and she did her job in a
professional manner.
¶ 76. Plaintiff told Andretta that when a company takes something
away like that, it is generally because the employee had done
something wrong.
¶ 77. A week or two later, in or around February 2015, another
female employee Shannon Fink fell on ice and reported the incident to
workman’s compensation.
12
¶ 78. Office Manager Terry Stauffer informed Andretta that Shannon
would be receiving care but still be able to work.
¶ 79. Andretta became noticeably upset and said “I will never hire
another women [sic] in the sales department again”.
¶ 80. On or about February 6, 2015, Plaintiff participated in a
“lineup” for the last time.
¶ 81. A “lineup” included all the sales associates lining up in front of
Andretta’s desk where they were constantly humiliated and as a form
of punishment, often this would happen in front of customers and with
other employees.
¶ 82. On February 9, 2015, Andretta [sic] was not present in the
morning meeting.
¶ 83 However, on or about February 9, 2015, Andretta was in a very
hostile mood and verbally abused another female employee, Shannon
Fink.
¶ 84. Plaintiff questioned Andretta about a car deal that took place on
or about Saturday February 7, 2015.
¶ 85. Plaintiff questioned why she had not received commissions that
were due to her.
13
¶ 86. Sometime thereafter, Andretta became verbally aggressive
using profanity and degrading comments directly to Plaintiff.
¶ 87. There was no formal HR process for employee concerns to be
heard so Plaintiff left work as the conditions became too much for her
to handle.
¶ 88. Upon information and belief, all employees were only able to
make complaints to three individuals, 1.) Blaise Alexander, 2.) the
general manager of a specific dealership and 3.) the employee’s
immediate supervisor.
¶ 89. Because of the aggressive nature exhibited by Andretta,
Plaintiff felt as if she could not go to HR for fear of further retaliation
from Andretta.
¶ 90. At one point, Andretta said to Plaintiff repeatedly, “You need
me more than I need you.”
¶ 91. Andretta effectively stopped people from filing internal
complaints by taking away job “perks” as a method and practice of
instilling fear in other employees.
¶ 92. Another female employee, Lori Selig, was humiliated and
degraded by Andretta in front of other male employees causing her to
quit as well.
14
¶ 93. Additionally, another female employee, Ashley Fry was
repeatedly humiliated and often to the extent of bringing her to tears
which would prompt Andretta to laugh.
¶ 94. Andretta would joke about having bets whether or not he would
make Ashley Fry cry on any given day.
¶ 95. Another female employee, Shannon Fink was also humiliated
and tormented by Andretta.
¶ 96. In one instance, Plaintiff along with several other employees
witnessed Andretta give Fink money and say “Go to the mall and buy
a new shirt, you look like a hooker.”
¶ 97. Andretta would often say that any complaints better not end up
over his head.
¶ 98. Andretta also made it known that if employees did not like their
job, they should just quit and not plan on ever working at any
Alexander dealership because he would make sure the employee
would not be hired.
¶ 99. By February 9, 2015, Plaintiff could no longer stand it and on
February 15, 2015, she filed for unemployment compensation due to a
hostile environment.
15
Rorke filed a timely charge of discrimination with the Equal Employment
Opportunity Commission and the Pennsylvania Human Relations Commission.
She received a right to sue letter on November 10, 2015.
b. ANALYSIS
COUNT I: TITLE VII VIOLATIONS AGAINST AUBREY ALEXANDER TOYOTA AND
COUNT II: PENNSYLVANIA HUMAN RELATIONS ACT AGAINST ALL DEFENDANTS
Recently, in Connelly v. Lane Construction Corp,20 the Third Circuit
provided guidance to district courts on the intersection of a motion to dismiss21and
Title VII.22 Defendants argue that Plaintiff’s retaliation claims should be dismissed
for failure to plead a prima facie case of discriminatory retaliation. This argument
fails.
Both the Third Circuit and the United States Supreme Court have made it
patently clear that a plaintiff need not plead a prima facie case to survive a motion
to dismiss. Judge Kent A. Jordan, writing for the Connelly court explained,
It is thus worth reiterating that, at least for purposes of pleading
sufficiency, a complaint need not establish a prima facie case in order
to survive a motion to dismiss. A prima facie case is “an evidentiary
standard, not a pleading requirement,” Swierkiewicz v. Sorema, N.A.,
534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), and hence is
“not a proper measure of whether a complaint fails to state a claim.”
20
809 F.3d 780 (3d Cir. 2016).
Federal Rule of Civil Procedure 12(b)(6).
22
42 U.S.C. § 2000e et. seq.
21
16
Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.2009). As we
have previously noted about pleading in a context such as this,
[a] determination whether a prima facie case has been
made ... is an evidentiary inquiry—it defines the quantum
of proof [a] plaintiff must present to create a rebuttable
presumption of discrimination. Even post-Twombly, it
has been noted that a plaintiff is not required to establish
the elements of a prima facie case....
Id. at 213 (citation omitted). Instead of requiring 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].” Phillips v. Cty. of Allegheny, 515 F.3d
224, 234 (3d Cir.2008) (quoting Twombly, 550 U.S. at 556, 127 S.Ct.
1955).23
I turn now to the three step procedure set forth in Connelly for evaluating a
motion to dismiss.24 First, I must recite the elements of the cause of action; next I
identify, but assign no assumption of truth, to conclusions of law plead by the
Plaintiff;25 and, finally, I determine if the facts alleged demonstrate a plausible
entitlement to relief.
For both Plaintiff’s Title VII retaliation claim and claim of retaliation under
the PHRA26 the elements of retaliation are “(1) she engaged in conduct protected
23
Connelly, 809 F.3d at 789.
See id. at 787.
25
Here, the paragraphs from the first amended complaint cited above are entirely composed of
alleged facts with no conclusions of law.
26
“Claims under the PHRA are interpreted coextensively with Title VII claims.” Atkinson v.
Lafayette College, 460 F.3d 447, 454 n. 6 (3d Cir. 2006) (citing Kelly v. Drexel Univ., 94 F.3d
102, 105 (3d Cir. 1996)). Pennsylvania courts “generally interpret the PHRA in accord with its
24
17
by Title VII; (2) the employer took adverse action against her; and (3) a causal link
exists between her protected conduct and the employer's adverse action.”27 The
first element, protected activity, can be in one of two forms – opposing Title VII
conduct or participating in a Title VII proceeding. “Title VII's antiretaliation
provision forbids employer actions that “discriminate against” an employee (or job
applicant) because he has “opposed” a practice that Title VII forbids or has “made
a charge, testified, assisted, or participated in” a Title VII “investigation,
proceeding, or hearing.”28
Rorke has not plead facts to state the first element of a retaliation claim. In
sum, Rorke did not allege facts that she “participated” in protected activity. Nor
did Rorke allege facts that she voice her “opposition” to Andretta’s actions; in fact,
the facts she alleges state the opposite:
¶ 87. There was no formal HR process for employee concerns to be
heard so Plaintiff left work as the conditions became too much for her
to handle.
¶ 88. Upon information and belief, all employees were only able to
make complaints to three individuals, 1.) Blaise Alexander, 2.) the
federal counterparts.” Kelly 94 F.3d at 105. “Moreover, the PHRA definition of “handicap or
disability” is substantially similar to the definition of “disability” under the ADA.” Id.
27
Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 201 (3d Cir.1994).
28
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S. Ct. 2405, 2410, 165 L. Ed.
2d 345 (2006) citing Title VII at 42 U.S.C. § 2000e–3(a).
18
general manager of a specific dealership and 3.) the employee’s
immediate supervisor.
¶ 89. Because of the aggressive nature exhibited by Andretta,
Plaintiff felt as if she could not go to HR for fear of further retaliation
from Andretta.29
Accordingly, Counts I and II, as stated, fail to state a claim for retaliation.
They will be dismissed and Plaintiff will be allowed one opportunity to re-plead
her counts in an amended complaint.
COUNT III: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL
DEFENDANTS
The Commonwealth of Pennsylvania recognizes the common law tort of
intentional infliction of emotional distress as “one who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional distress to another is
subject to liability for such emotional distress, and if bodily harm to the other
results from it, for such bodily harm.”30 Courts are divided as to whether or not an
employee can bring an intentional infliction of emotional distress claim outside of
the worker’s compensation context. Pennsylvania’s Worker's Compensation Act
provides that it the sole remedy for injuries sustained during employment. Some
29
ECF No. 16 at 12 paragraphs 87-89.
Britt v. Chestnut Hill Coll., 429 Pa. Super. 263, 272, 632 A.2d 557, 561 (1993) citing
Restatement (Second) of Torts, § 46(1).
30
19
courts have held that this includes claims for intentional infliction of emotional
distress.31 More frequently, however, federal courts have allowed the intentional
infliction of emotional distress in the workplace claim to proceed alongside a Title
VII claim.32
The parties agree that the law in this area is unsettled. Accordingly, I will
not dismiss the claim as preempted by Pennsylvania statutory law, because a
majority of District Courts, including this District, have permitted employee
intentional infliction of emotional distress claims to proceed.
That said, I will dismiss the claim, with leave to amend, for not having
alleged “extreme and outrageous” conduct. “The Pennsylvania Supreme Court has
enunciated an objective standard for intentional infliction of emotional distress,
permitting recovery only “where a reasonable person normally constituted would
be unable to adequately cope with the mental stress engendered by the
circumstances of the event.”33 “Generally, it is insufficient “that the defendant has
31
See, e.g., Smith v. Davis, 248 F.3d 249, 253 (3d Cir. 2001) (citing to the district court’s
dismissal of the intentional infliction of emotional distress claim as preempted by the Worker’s
Compensation Act, while taking no position on the propriety of that decision, as it was not
appealed by the plaintiff).
32
See e.g., Harper v. Misitano, No. 1:15-CV-2205, 2016 WL 4429941, at *1 (M.D. Pa. Aug. 22,
2016) (Kane, J.); Russell v. City of Philadelphia, No. CV 13-3151, 2016 WL 4478764, at *10
(E.D. Pa. Aug. 25, 2016) (Quinones Alejandro, J.); Despot v. Baltimore Life Ins. Co., No. CV
15-1672, 2016 WL 4148085, at *13 (W.D. Pa. June 28, 2016), report and recommendation
adopted, No. CV 15-1672, 2016 WL 4141109 (W.D. Pa. Aug. 4, 2016) (Mitchell, M.J.), Cohen
v. Chester Cty. Dep't of Mental Health/Intellectual Disabilities Servs., No. CV 15-5285, 2016
WL 3031719, at *14 (E.D. Pa. May 25, 2016) (DuBois, J.).
33
Russell, 2016 WL 4478764, at *11, citing Kazatsky v. King David Mem'l Park, 527 A.2d 988,
993 (Pa. 1987).
20
acted with an intent which is tortious or even criminal, or that he has intended to
inflict emotional distress, or even that his conduct has been characterized by
malice, or a degree of aggravation which would entitle the plaintiff to punitive
damages for another tort.”34 “Rather, recovery for the tort of intentional infliction
of emotional distress [has been] reserved by the courts for only the most clearly
desperate and ultra-extreme conduct....”35 “It is for the court to determine, in the
first instance, whether the actor's conduct can reasonably be regarded as so extreme
and outrageous as to permit recovery.”36
“It must be recognized that it is extremely rare to find conduct in the
employment context that will rise to the level of outrageousness necessary to
provide a basis for recovery for the tort of intentional infliction of emotional
distress.”37 The Honorable Yvette Kane of this Court has stated,
[A]s a general rule, sexual harassment alone does not rise to the level
of outrageousness necessary to make out a cause of action for
intentional infliction of emotional distress.” Andrews v. City of
Philadelphia, 895 F.2d 1469, 1487 (3d Cir. 1990).In fact, within the
employment context, Pennsylvania courts have found conduct
sufficiently outrageous “where an employer engaged in both sexual
harassment and other retaliatory behavior against an employee.” Cox
v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988) (emphasis
added); Hoy, 720 A.2d at 153 (considering retaliation a “weighty
factor”); see Lee v. Comhar Inc., 244 Fed.Appx. 464, 467 (3d Cir.
34
Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998).
Id. at 754.
36
Russell, at * 11.
37
Despot v. Baltimore Life Ins. Co., No. CV 15-1672, 2016 WL 4148085, at *13 (W.D. Pa. June
28, 2016), report and recommendation adopted, No. CV 15-1672, 2016 WL 4141109 (W.D. Pa.
Aug. 4, 2016)
35
21
2007). “The extra factor that is generally required is retaliation for
turning down sexual propositions.” Andrews, 895 F.2d at 1487.38
While I acknowledge that the alleged facts portray Michael Andretta as a
misogynist bully who uses inappropriate and vulgar language, I do not find that
Rorke’s pleadings, as stated, rise to the level of extreme and outrageous conduct.
She will be granted one opportunity to amend this count, as well.
IV. CONCLUSION
For the foregoing reasons, the Motion to Dismiss under Rule 12(b)(6) is
granted. Federal Rule of Civil Procedure 15(a) states that amendment should freely
be given,39 and I do not find that amendment here would be futile. I will therefore
allow Plaintiff one final opportunity to amend her complaint. An appropriate Order
follows.
BY THE COURT:
/s Matthew W. Brann
Matthew W. Brann
United States District Judge
38
Harper v. Misitano, No. 1:15-CV-2205, 2016 WL 4429941, at *3 (M.D. Pa. Aug. 22, 2016)
(Kane, J.)
39
See Forman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1982).
22
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