MCASSEY v. DISCOVERY MACHINE INC. et al

Filing 50

ORDER ADOPTING REPORT AND RECOMMENDATIONS - IT IS ORDERED THAT: 1. Magistrate Judge Carlsons Report and Recommendation 5 , is ADOPTED; 2. Defendants Rule 12(b)(6) motion 13 to dismiss is GRANTED IN PART and DENIED IN PART as follows: a. Plaintiffs ADA claim and corresponding disability discrimination claim under the PHRA are DISMISSED WITHOUT PREJUDICE; b. Plaintiffs aiding and abetting claim under the PHRA against Defendants Todd Griffith, Howard Lewis, Vanessa Chapla and Molly Lusk is DISMI SSED WITHOUT PREJUDICE; andc. In all other respects, Defendants motion to dismiss is DENIED; 3. Plaintiff James McAssey is granted leave to file, within twenty-one (21) days of the date of this Order, an amended complaint that addresses the defects i dentified in this Order and the Report and Recommendation. Specifically, Plaintiff is directed to file a more definite statement of his sexual harassment and retaliation claims pursuant to Federal Rule of Civil Procedure 12(e). Further, any amended c omplaint must be complete in all respects. It must be a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed. Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992); and 4. The above-captioned action is referred back to Magistrate Judge Carlson for further pre-trial management. Signed by Honorable Yvette Kane on 7/20/17. (rw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES McASSEY,
Plaintiff
v.
DISCOVERY MACHINE, INC., et al.,
Defendants

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No. 4:16-cv-705
(Judge Kane)
(Magistrate Judge Carlson)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
From June 2010 until May 2015, Plaintiff James McAssey worked as the Vice President
of Business Development for Defendant Discovery Machine Inc. (“DMI”). (Doc. No. 1 ¶¶ 20,
22.) Plaintiff asserts that he experienced a “serious brain incident” in 2009 and has occasionally
suffered acute headaches as a consequence of hydrocephalus. (Id. ¶ 21.) Defendant Anna
Griffith, owner and chief executive officer of DMI, allegedly commented “on occasion that she
did not want Plaintiff to represent DMI.” (Id. ¶¶ 4-5, 21.) Defendant Anna Griffith also
purportedly subjected Plaintiff to unwelcome and unsolicited acts that included, inter alia, sexual
requests, “lying to Plaintiff about DMI client contact,” and “going out to meals to provide the
Plaintiff alcohol.” (Id. ¶ 25.)
On February 24, 2016, Plaintiff filed a complaint in the United States District Court for
the Eastern District of Pennsylvania against Defendants DMI, Anna Griffith, Todd Griffith,
Howard Lewis, Molly Lusk, and Vanessa Chapla, alleging violations under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e, et seq. (“Title VII”), the Americans with Disabilities Act, 42
U.S.C. §12101, et seq. (“ADA”), and the Pennsylvania Human Relations Act, 43 P.S. § 951, et
seq. (“PHRA”). (Doc. No. 1.) In his complaint, Plaintiff alleges, inter alia, that Defendants
subjected him to a hostile work environment and terminated him for his refusal to be subjected to
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continued harassment and because of his disability. (Id. ¶¶ 26, 271, 32, 332.) Plaintiff also
asserts that Defendants Todd Griffith, Howard Lewis, Molly Lusk, and Vanessa Chapla “aided
and abetted Ms. [Anna] Griffith’s harassment against Plaintiff.” (Id. ¶ 6.)
On March 21, 2016, Defendants filed a motion to transfer venue to the United States
District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). (Doc.
No. 10.) Judge Timothy J. Savage granted the motion on April 18, 2016 and the abovecaptioned case was transferred to the Middle District of Pennsylvania on April 28, 2016. (Doc.
Nos. 18-19, 21.) Pending at the time of transfer was Defendant’s motion to dismiss Plaintiff’s
complaint filed pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 13.) In their
motion to dismiss, Defendants argue that the complaint is “devoid of any factual allegations”
involving Todd Griffith, Howard Lewis, Molly Lusk, and Vanessa Chapla, fails to state a claim
for disability discrimination under the ADA and PHRA, and fails to state a claim for retaliation
under Title VII. (Id. at 10-14 & n.19.)
On January 18, 2017, Magistrate Judge Carlson issued a Report and Recommendation,
recommending that this Court grant in part and deny in part Defendants’ motion to dismiss.
(Doc. No. 40.) Specifically, Magistrate Judge Carlson recommends that this Court: (1) dismiss
without prejudice Plaintiff’s ADA claim;3 and (2) decline to dismiss Plaintiff’s Title VII claim
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Plaintiff’s complaint appears to mistakenly number paragraphs 27 and 28 as paragraphs
29 and 30. (Doc. No. 1 at 10.)
2
Plaintiff’s complaint appears to mistakenly number paragraph 33 as paragraph “333.”
(Doc. No. 1 at 11.)
3
Magistrate Judge Carlson reasons that Plaintiff has failed to allege any facts that “would
link the actions of his employer to discrimination based upon any medical condition which he
experienced.” (Doc. No. 40 at 17.) Given that Magistrate Judge Carlson noted “that the
analytical framework used to evaluate a disability discrimination claim under the PHRA is
effectively indistinguishable from that under the ADA,” (Doc. No. 40 at 9) (quoting Wilson v.
Iron Tiger Logistics, Inc., 628 F. App’x 832, 835-36 (3d Cir. 2015)), the Court construes the
Report and Recommendation as also recommending the dismissal of Plaintiff’s disability
discrimination claim brought under the PHRA (see Doc. No. 1).
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regarding sexual harassment and retaliation, but direct Plaintiff “to file a more definite
statement” concerning his Title VII claim. (Doc. No. 40 at 17-18, 22-23.) Defendants filed
objections to the Report and Recommendation (Doc. Nos. 44, 44-2), and the parties each filed
briefs addressing Defendants’ objections (Doc. Nos. 45, 47).
In their objections, Defendants contend that the Report and Recommendation did not
address whether Plaintiff adequately alleged a PHRA claim against Todd Griffith, Howard
Lewis, Molly Lusk, and Vanessa Chapla. (Doc. Nos. 44 at 2; 44-2 at 2.) Defendants reason that
only a “supervisory employee can be shown to have aided and abetted the employer’s
discriminatory actions in violation of the PHRA,” (Doc. No. 44-2 at 12-13) (quoting Cohen v.
Temple Physicians, Inc., 11 F. Supp. 2d 733, 737 (E.D. Pa. 1998)), and that Plaintiff failed to
allege that Todd Griffith, Howard Lewis, Molly Lusk and Vanessa Chapla were supervisors (id.
at 13). Plaintiff responds that the complaint adequately alleges that Defendants Anna Griffith,
Todd Griffith, Howard Lewis, Molly Lusk, and Vanessa Chapla committed “acts of
discrimination as Plaintiff’s supervisor or fellow employee” and are liable under 43 Pa. Stat. §
955(e). (Doc. No. 45 at 4, 8.)
The Report and Recommendation correctly recognized that “[t]he analytical framework
used to evaluate a disability discrimination claim under the PHRA is effectively
indistinguishable from that under the ADA.” (Doc. No. 40 at 9) (quoting Wilson v. Iron Tiger
Logistics, Inc., 628 F. App’x 832, 835-36 (3d Cir. 2015)). Similarly, as a general rule, “[c]laims
brought under the Pennsylvania Human Relations Act … [are] ‘interpreted coextensively with
Title VII claims.’” Faush v. Tuesday Morning, Inc., 808 F.3d 208, 213 (3d Cir. 2015).
However, the Report and Recommendation did not squarely address whether Plaintiff adequately
alleged an aiding and abetting claim under the PHRA against Todd Griffith, Howard Lewis,

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Molly Lusk, and Vanessa Chapla.4 (Doc. Nos. 40; 44 at 2.) Accordingly, the Court now turns to
the Defendants’ PHRA challenge.5
Section 5(e) of the PHRA, codified at 43 Pa. Stat. § 955(e), contemplates “individual
liability for aiding and abetting employers’ violations of the PHRA” by forbidding:
(e) [A]ny person, employer, employment agency, labor organization or
employee, to aid, abet, incite, compel or coerce the doing of any act declared by
this section to be an unlawful discriminatory practice, or to obstruct or prevent
any person from complying with the provisions of this act or any order issued
thereunder, or to attempt, directly or indirectly, to commit any act declared by this
section to be an unlawful discriminatory practice.
43 Pa. Stat. Ann. § 955(e); see Snyder v. Pennsylvania, No. 09-1814, 2010 WL 4362440, at *7
(M.D. Pa. Oct. 27, 2010) (citing Dici v. Com. of Pa., 91 F.3d 542, 551-52 (3d Cir. 1996)).
“[D]istrict courts sitting in the Third Circuit have consistently held that ‘[l]iability under § 955(e)
attaches only to supervisory employees.’” Suero v. Motorworld Auto. Grp., Inc., No. 16-686,
2017 WL 413005, at *5 (M.D. Pa. Jan. 31, 2017) (collecting cases). This approach to § 955(e)
liability tracks “the theory that only supervisors can share the discriminatory purpose and intent
of the employer that is required for aiding and abetting.” See, e.g., Holocheck v. Luzerne Cty.
Head Start, Inc., 385 F. Supp. 2d 491, 497 (M.D. Pa. 2005) (Vanaskie, J.) (citing Bacone v.
Philadelphia Housing Auth., No. 01-419, 2001 WL 748177, *2 (E.D. Pa. June 27, 2001)).
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As to distinguishing between supervisors and non-supervisory co-workers, the Report
and Recommendation did discuss that the “basis of an employer’s liability [under Title VII] for
hostile environment sexual harassment depends on whether the harasser is the victim’s
supervisor or merely a coworker.” (Doc. No. 40 at 13) (quoting Larochelle v. Wilmac Corp.,
210 F. Supp. 3d 658, 682 (E.D. Pa. 2016)).
5
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts “to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). A court must accept as
true all factual allegations in the complaint and all reasonable inferences that can be drawn from
them, viewed in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust
Litig., 618 F.3d 300, 314 (3d Cir. 2010).
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Here, in his complaint, Plaintiff alleges that Todd Griffith, Howard Lewis, Vanessa
Chapla, and Molly Lusk are “employees and/or officers of DMI” who “aided and abetted” Anna
Griffith’s harassment and, more generally, aided and abetted “the harassment and
discrimination.” (Doc. No. 1 ¶¶ 6, 29, 40) The three exhibits Plaintiff attaches to his complaint
similarly only permit the Court to draw the following inferences therefrom: (1) Howard Lewis is
a chairman of DMI’s board and a paid consultant (id. at 17, 24); (2) Plaintiff notified Howard
Lewis of Anna Griffith’s “vulgare and abuse treatment” on April 27, 2015 (id. at 17; see Doc.
No. 1-1 at 1); (3) Howard Lewis responded on April 27, 2015 that “sometimes people have a bad
day” and mentioned approaching “things differently next time” (Doc. No. 1 at 17, 24); and (4)
the termination letter was provided to Plaintiff by Anna Griffith, Todd Griffith, and Howard
Lewis (Doc. No. 1-1 at 1, 8).
Upon review of the complaint and the exhibits attached thereto, the Court finds that
Plaintiff fails to adequately allege an aiding and abetting claim under the PHRA against Todd
Griffith, Howard Lewis, Vanessa Chapla and Molly Lusk. First, Plaintiff fails to allege or
otherwise permit this Court to reasonably infer that Todd Griffith, Howard Lewis, Vanessa
Chapla and Molly Lusk were Plaintiff’s supervisors. Second, although the complaint makes
references to the conduct of “Defendants” and “foregoing acts,” Plaintiff fails to plead factual
allegations that support the conclusory assertion that Todd Griffith, Howard Lewis, Vanessa
Chapla, and Molly Lusk aided and abetted PHRA violations. (Id. ¶¶ 40, 41.) Therefore, the
Court will dismiss without prejudice Plaintiff’s aiding and abetting claims under the PHRA for
failure to state a claim upon which relief can be granted.

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ACCORDINGLY, upon independent review of the record and applicable law, on this
20th day of July 2017, IT IS ORDERED THAT:
1. Magistrate Judge Carlson’s Report and Recommendation (Doc. No. 5), is
ADOPTED;
2. Defendants’ Rule 12(b)(6) motion to dismiss (Doc. No. 13), is GRANTED IN
PART and DENIED IN PART as follows:
a. Plaintiff’s ADA claim and corresponding disability discrimination claim
under the PHRA are DISMISSED WITHOUT PREJUDICE;
b. Plaintiff’s aiding and abetting claim under the PHRA against Defendants
Todd Griffith, Howard Lewis, Vanessa Chapla and Molly Lusk is
DISMISSED WITHOUT PREJUDICE; and
c. In all other respects, Defendants’ motion to dismiss is DENIED;
3. Plaintiff James McAssey is granted leave to file, within twenty-one (21) days of the
date of this Order, an amended complaint that addresses the defects identified in this
Order and the Report and Recommendation. Specifically, Plaintiff is directed to file a
more definite statement of his sexual harassment and retaliation claims pursuant to
Federal Rule of Civil Procedure 12(e). Further, any “amended complaint must be
complete in all respects. It must be a new pleading which stands by itself as an
adequate complaint without reference to the complaint already filed.” Young v.
Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992); and
4. The above-captioned action is referred back to Magistrate Judge Carlson for further
pre-trial management.

s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania

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