ROADMAN v. SELECT SPECIALTY HOSPITAL et al

Filing 40

MEMORANDUM OPINION AND ORDER granting 32 Motion to Dismiss Amended Complaint in Part. It is hereby Ordered as follows: 1. Plaintiff's Title VII claim (Count 1) against Defendant Specialty Hospital Johnstown, Inc. is DISMISSED only to the ex tent it asserts a constructive discharge claim. 2. Plaintiff's battery claim (Count 3) is DISMISSED only to the extent it asserts a constructive discharge claim. 3. Plaintiff is DENIED leave to amend her Amended Complaint with respect to the constructive discharge claims, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 1/23/2018. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONNA ROADMAN,

)

Case No. 3:16-cv-246

)
)

Plaintiffs,

JUDGE KIM R. GIBSON

)

)

v.

)

)

SELECT SPECIALTY HOSPITAL and
RONALD LEWIS,

)
)
)
)

Defendants.

)

MEMORANDUM OPINION
I.

Introduction
Pending before this Court is Defendants' Motion to Dismiss Amended Complaint in Part.

(ECF No. 32.) This Motion is fully briefed (ECF Nos. 33, 34, 38), and is ripe for disposition.
This case arises from Plaintiff Donna Roadman' s ("Roadman") allegations that Defendant
Ronald Lewis ("Lewis") sexually harassed her at her workplace, Defendant Select Specialty
Hospital ("Select"). As discussed infra, this Court previously issued a Memorandum Opinion
and Order dismissing, in part, Road man's initial Complaint. See Roadman v. Select Specialty

Hospital, 3:16-cv-246, 2017 WL 4236581 (W.D. Pa. Sept. 22, 2017) (Gibson, J.). Roadman has sought
to remedy some of the deficient portions of her Complaint, namely her constructive discharge
claims in Count 1 and Count 3, by filing an Amended Complaint. (See ECF No. 30.) Defendants
ask this Court to, again, hold that Roadman's constructive discharge claims are insufficient. (See
ECF Nos. 32, 33, 38.)

Because Roadman' s Amended Complaint still fails to plead cognizable constructive
discharge claims, and, for the reasons that follow, Defendants' Motion to Dismiss Amended
Complaint in Part is GRANTED.
II.

Jurisdiction & Venue

The Court has jurisdiction over Roadman' s federal claim under Title VII pursuant to 28
U.S.C. § 1331. The Court has supplemental jurisdiction over the state law claims pursuant to 28
U.S.C. § 1367. Venue is proper in this district under 28 U.S.C. § 1391(b)(2) because the alleged
events giving rise to Roadman's claims occurred in Johnstown, Cambria County, Pennsylvania.
(ECF No. 30 <fl 2.)
III.

Factual Allegations Set Forth in the Amended Complaint

The following facts, which the Court accepts as true in deciding Defendants' Motion to
Dismiss Amended Complaint in Part, are alleged in the Amended Complaint. (See ECF No. 30.)
Defendant Select, a specialty care hospital offering rehabilitative care and long term acute
care, hired Roadman as a registered nurse to work at its Johnstown location on July 7, 2015. (Id.
<j[<j[ 6-8.) During the first week of her employment, Roadman did orientation. (Id.

<fl 10.) During

the second week of Roadman' s employment, Roadman was introduced to Lewis, a registered
nurse who had worked for Select for several years prior to Roadman' s employment. (Id. <j[<j[ 1112.) Select assigned Lewis to train Roadman for her new position. (Id. <fl 13.)
Before beginning her training, a number of other employees made comments to Roadman
concerning Lewis's behavior. (Id. <fl 14.) These comments included: (1) a nurse named Jamie
telling Roadman to "be careful" around Lewis because "he hit on her," (2) Jamie suggesting
"being mean" to Lewis so that he would not harass or continue to harass her, (3) a respiratory

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therapist informing Roadman that Lewis liked her and wanted to date her, and (4) another
respiratory therapist joking in front of Lewis and Roadman, therein "implying knowledge" of
Lewis's intentions, that Roadman would never go out with Lewis. (Id. cir 14.)
Thereafter, the Complaint alleges that, with approval and knowledge of Select, Lewis
created and maintained a hostile work environment for Roadman because of her gender by
engaging in the following behavior: (1) demanding dates, intimating that Roadman should sleep
with him, touching Roadman' s buttocks, and touching Roadman' s cheeks; (2) calling Roadman
"babe" and "hun" and commenting on Roadman's appearance by stating Roadman was "cute,"
"pretty," or "sexy" on "diverse dates"; (3) texting Roadman on her cell phone number that he
acquired for purposes of orientation and calling Roadman "babe" or "hun" in those messages; (4)
scolding, degrading, and belittling Roadman concerning her nursing skills and job performance
when Roadman refused his unwelcome advances; (5) grabbing Roadman by the waist and
grinding his crotch into her buttocks to the point where Roadman "felt Mr. Lewis's erect penis
against her" on one occasion in the medicine room; and (6) "by other such actions too numerous
to list in their entirety." (Id. cir 15.) Road man also alleges that Lewis's references to Roadman as
"babe" and "hun" and the touching of Roadman's buttocks and cheeks "regularly occurred in
front of staff and were open and notorious to the other employees of Select." (Id. cir 16.)
Roadman reported this behavior to her scheduler, Renee Lightcap ("Lightcap") and
requested to be trained by someone other than Lewis. (Id. cir 17.) Lightcap complied, and Ronald
Lindros ("Lindros") completed Roadman's remaining week of orientation. (Id. cir 18.) Roadman
completed her orientation with Lindros, but she was scheduled to work at the same time as Lewis

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for several days. (Id. 1119.) Roadman called off work on these days to avoid working with Lewis.
(Id. 11 20.)

After returning from vacation, Roadman' s supervisor, Danielle Smorto ("Smorto"),
telephoned Roadman and "asked her what happened." (Id. 1121.) Roadman reported the alleged
harassment to Smorto by telephone and sent a follow-up e-mail. (Id. 1111 23-23.) Smorto told
Roadman that she would investigate the situation, instructed Roadman not to discuss the matters
with anyone, and changed the weekend work schedule so that Roadman and Lewis would not
be working together. (Id. 1111 25-27.)
Approximately one week after speaking with Smorto regarding the alleged harassment,
Smorto called Roadman into a meeting with Smorto and Matt Cost ("Cost"), a human resources
employee. (Id. 1128.) At this meeting, Smorto and Cost told Roadman that they had "investigated
her complaints with Mr. Lewis, exclusively" and that Lewis had denied her accusations. (Id. 1111
29-30.) Roadman then informed Smorto and Cost that she could not work with Lewis, requested
that she not be scheduled with Lewis, and advised them that she had received inappropriate text
messages from Lewis. (Jd.111131-32.) After this meeting, Roadman also discussed the matter with
Barb Foster ("Foster")-whose position, if any, with Select is not set forth in the Amended
Complaint-and stated that she did not want to work with Lewis. (Id. 1133.) Roadman provided
copies of the above-referenced text messages to Foster and told her that Jamie Cottermanpresumably the same nurse who told Roadman to "be[] mean" to Lewis so he would not harass
her-could corroborate her concerns. (Id. 1I1I 34-35.) The Complaint alleges that Select was aware
of Roadman' s concerns regarding Lewis because, on several occasions, Roadman called off work
when she was scheduled to work with Lewis and still received pay. (Id. 11 36.)

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Roadman had an additional meeting with Human Resources, during which she was
informed of the effort to schedule her and Lewis for different shifts, but that Human Resources
could not "guarantee" that she and Lewis would not be scheduled together. (Id. enen 37-38.) At
this second meeting, Human Resources "threatened the Plaintiff that if either her [sic] or Mr.
Lewis said anything else or filed a complaint either one would be fired." (Id. en 39.) The Amended
Complaint alleges that this threat made it intolerable for Roadman to continue her employment
because she believed that she was being "shunned into silence" and that she "could have been
victimized later by Mr. Lewis or his friends." (Id. en 40.) At no time did Human Resources discuss
or offer Roadman the opportunity to transfer to a different Select facility. (Id. en 41.) The Amended
Complaint further alleges that Roadman was "forced to resign" on August 26, 2016. 1 (Id. en 42.)
IV.

Procedural History
Roadman filed a charge of discrimination with the Equal Employment Opportunity

Commission and received a Notice of Right to Sue. (Id. en 43.) Roadman then filed her Complaint
with the Court on November 18, 2016. (ECF No. 1.) Defendants filed their Motion to Dismiss
Complaint in Part on February 7, 2017 (ECF No. 7), which this Court granted in part and denied
in part through Memorandum Opinion and Order of September 22, 2017. See Roadman, 2017 WL
4236581. In this prior Memorandum Opinion and Order, the Court dismissed Roadman's Title
VII claims asserted against Lewis and Roadman' s demand for attorney's fees as to Count 2 and
Count 3 with prejudice. Id. at *9. The Court also dismissed Roadman's Title VII claim and battery

As pointed out by Defendants (ECF No. 33 at 5), the date of April 26, 2016 provided in the Amended
Complaint appears to be a typographical error and should read August 26, 2015.
1

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claim against Select only to the extent that those claims purported to assert constructive discharge
claims, but granted Roadman leave to amend on or before October 20, 2017. Id.
On October 20, 2017, Roadman filed her Amended Complaint. (See ECF No. 30.) The
Court construes the Amended Complaint to feature three counts: (1) a claim for both a hostile
work environment and for constructive discharge under Title VII of the Civil Rights Act of 1964
against Select; (2) a claim for "negligence/negligent supervision" against Select; and (3) a claim
for both battery and constructive discharge against Lewis. Defendants filed their Motion to
Dismiss Amended Complaint in Part and their accompanying brief in support thereof on
November 3, 2017. (ECF Nos. 32, 33.) Roadman filed her Brief Opposition Motion to Dismiss on
November 27, 2017 (ECF No. 34), and Defendants filed their Reply Brief on December 15, 2017.
(ECF No. 38.)

V.

Standard of Review
A complaint may be dismissed under Federal Rule of Civil Rule 12(b)(6) for "failure to

state a claim upon which relief can be granted." Connelly v. Lane Const. Corp., 809 F.3d 780, 786
(3d Cir. 2016). But, detailed pleading is not generally required. Id. The Rules demand only "a
short and plain statement of the claim showing that the pleader is entitled to relief" to give the
defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)).
Under the pleading regime established by Twombly and Iqbal, a court reviewing the
sufficiency of a complaint must take three steps. 2 First, the court must "tak[e] note of the elements

Although Iqbal described the process as a "two-pronged approach," Iqbal, 556 U.S. at 679, the Supreme
Court noted the elements of the pertinent claim before proceeding with that approach, id. at 675-79. Thus,
the Third Circuit has described the process as a three-step approach. See Connelly, 809 F.3d at 787; Burtch

2

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[the] plaintiff must plead to state a claim." Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Second, the
court should identify allegations that, "because they are no more than conclusions, are not
entitled to the assumption of truth." Id. at 679; 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.") (citation 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. "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.; see also Connelly, 809 F.3d at 786. Ultimately,
the plausibility determination is "a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

VI.

Discussion
Defendants have moved to dismiss portions of the Amended Complaint, namely any

portions of Count 1 and Count 3 that purport to bring claims for constructive discharge. The
Court previously dismissed these two counts only to the extent that they alleged claims for
constructive discharge. See Roadman, 2017 WL 4236581, at *9. Because Roadman's handful of
minor changes between the Complaint and the Amended Complaint fail to remedy the
insufficiencies of her constructive discharge claims, the Court agrees with Defendants and, again,
will dismiss Count 1 and Count 3 to the extent they plead claims for constructive discharge.
Furthermore, given this unsuccessful effort to amend these constructive discharge claims, this

v. Milberg Factors, Inc., 662 F.3d 212, 221 n.4 (3d Cir. 2011) (citing Santiago v. Warminster Township, 629 F.3d
121, 130 (3d Cir. 2010)).

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second dismissal is with prejudice because the Court finds that further amendment would be
futile. See Phillips, 515 F.3d at 236.
As this Court explained in its prior Memorandum Opinion and Order of September 22,
2017:
A plaintiff who voluntarily resigns may assert a claim of constructive discharge
when the employer's allegedly discriminatory conduct "creates an atmosphere
that is the constructive equivalent of a discharge." Gray v. York Newspapers, Inc.,
957 F.2d 1070, 1079 (3d Cir. 1992); Hibbard v. Penn-Trafford School Dist., Civ. Action
No. 13-622, 2014 WL 640253, at *7 (W.D. Pa. Feb. 19, 2014) (Conti, C.J.). The
resignation is treated as if it were an outright dismissal by the employer, which
can serve as the basis for a discrimination claim. Duffi; v. Paper Magic Group, Inc.,
265 F.3d 163, 167-68 (3d Cir. 2001).
Constructive discharge represents a "'worse case' harassment scenario,
harassment ratcheted up to the breaking point." Pennsylvania State Police v. Suders,
542 U.S. 129, 147-48 (2004). "Constructive discharge occurs when an employer
knowingly permit[s] conditions of discrimination in employment so intolerable
that a reasonable person subject to them would resign." Spencer v. Wal-Mart Stores,
Inc., 469 F.3d 311, 317 n.4 (3d Cir. 2006). Thus, a claimant may argue constructive
discharge when an employer was, or should have been, aware of harassment and
did nothing to stop it. Duffy, 265 F.3d at 168 (quoting Aman v. Cort Furniture Rental
Corp., 85 F.3d 1074, 1084-85 (3d Cir. 1996)).
The relevant test is whether "'the employer permitted conditions so unpleasant or
difficult that a reasonable person would have felt compelled to resign."' Colwell v.
Rite Aid Corp., 602 F.3d 495, 502 (3d Cir. 2010) (quoting Duffi;, 265 F.3d at 167).
Factors relevant to such a determination include: (1) threats of termination or
suggested resignation, (2) demotions, (3) reductions in pay and benefits, (4)
involuntary transfer to less desirable positions, (5) alteration of job responsibilities,
and (6) poor performance evaluations. Id. at 503 (quoting Clowes v. Allegheny Valley
Hosp., 991F.2d1159, 1161 (3d Cir. 1993)). Moreover, "[t]o make out a constructive
discharge claim, a plaintiff must show greater severity or pervasiveness than the
minimum required to prove a hostile working environment." Greer v. Mondelez
Global, Inc., 590 F. App'x 170, 175 n.7 (3d Cir. 2014) (citing Spencer, 469 F.3d at 317
n.4).

Roadman, 2017 WL 4236581, at *3-*4

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As with her original Complaint, Roadman' s Amended Complaint has failed to allege
sufficient facts that Defendants imposed conditions on Roadman so intolerable and
discriminatory that a reasonable person vvould have been forced to resign. See Hibbard, 2014 WL
640253, at *8 (citing Levendos v. Stern Entm't, Inc., 860 F.2d 1227, 1231 (3d Cir. 1988)). The Court
will not now repeat the reasons provided in our prior Memorandum Opinion and Order for our
dismissal of Roadman's constructive discharge claims because those reasons are articulated
therein and need not be reiterated here. See Roadnuzn, 2017 WL 4236581, at *3-*6, *8-*9. Instead,
the Court hereby incorporates its prior reasoning by reference here. See id.
However, the Court will address the minor additional allegations included in the
Amended Complaint and Roadman's new legal arguments and citations to case law. The only
new allegations appearing in the Amended Complaint are that: (1) Lewis "scold[ed], degrade[d],
and belittle[ d] the Plaintiff concerning her nursing skills and job performance" when she refused
his "unwelcome advances"; (2) Lewis's references to Roadman as "babe" and "hun" and touching
of Roadman's buttocks and cheeks "regularly occurred in front of state and were open and
notorious to the other employees of Select"; and (3) "at no time did Human [R]esources discuss
or offer [Roadman] the opportunity to transfer to a different [S]elect facility." (ECF No. 30 'Il'Il 15,
16, 41.) These new allegations-to any minimal extent in which they might go beyond the
allegations of the original Complaint-do not sufficiently heighten the severity or pervasiveness
alleged in the original Complaint to the greater level of severity and pervasiveness required for a
construct discharge claim. See Greer, 590 F. App'x. at 175 n.7 (citing Spencer, 469 F.3d at 317 n.4).
All other new or altered allegations contained in the Amended Complaint relate to
Roadman's subjective reaction to and perceptions of the alleged harassment or are minor wording

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changes (see, e.g., ECF No. 30 at 1I1I 19-20), which are not relevant to the objective inquiry of
whether Defendants imposed conditions on Roadman so intolerable and discriminatory that a
reasonable person would have been forced to resign. See Hibbard, 2014 WL 640253, at *8 (citing

Levc11dos, 860 F.2d at 1231).
As in the original Complaint, Roadman's Amended Complaint does not allege that she
suffered any alterations to the terms and conditions of her employment, a demotion, apay cut,
or a transfer to compel her to resign, nor does Roadman allege that any harassment continued
after she first reported it to her supervisor. See Suders, 542 U.S. at 134; Hibbard, 2014 WL 640253,
at *7. As this Court wrote previously:
In essence, the Complaint, as written, describes a relatively brief period of
misconduct during an initial period of training that ended upon Roadman's first
complaint to her scheduler and did not resume thereafter. Thus, as currently
alleged in the Complaint, when Roadman resigned, the harassment purportedly
perpetrated by Lewis was not at the "breaking point" required by the Supreme
Court. See Suders, 542 U.S. at 148.

Roadman, 2017 WL 4236581, at *5. This prior statement and the remainder of the reasoning
provided in this Court's previous Memorandum Opinion and Order apply equally to the
Amended Complaint. See id. at *3-*6, *8-*9.
Roadman offers extensive argument in her Brief Opposing Motion to Dismiss regarding
the so-called Ellerth!Farragher defense. (Sec ECF No. 34 at 6-10.) However, as this Court explained
previously, Defendants have not raised the Ellerth/Farrngher affirmative defense. See Suders, 542
U.S. at 137-38 (citing Faragher v. Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellertlz,

524 U.S. 742 (1998)). Defendants, instead, argue that the Amended Complaint fails to allege

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sufficient facts to make out the essential clements of a claim for constructive discharge-an
argument with which this Court agrees. See Roadman, 2017 WL 4236581, at *6.
In her Brief Opposing Motion to Dismiss, Roadman cites to four cases, see Meritor Savings

Bank v. Vinson, 477 U.S. 57 (1986); Donaldson v. Lensbouer, 15-cv-63, 2017 WL 2199006 (W.D. Pa.
May 18, 2017) (Gibson, J.); Bedford v. Se. Pa. Transp. Auth., 867 F. Supp. 288, 297 (E.D. Pa. 1994);

Winkler v. Progressive Bus. Publ'ns, 200 F. Supp. 3d 514, 519 (E.D. Pa. 2016), that she did not
reference in opposing Defendants' first Motion to Dismiss. (See ECF No. 34 at 4-5.) However,
these cases are easily distinguishable.
First, Meritor, Donaldson, and, Bedford all address only "basic" hostile work environment
claims-not heightened claims for constructive discharge. See generally Meritor, 477 U.S. 57;

Donaldson, 2017 WL 2199006; Bedford, 867 F. Supp. 288. Second, Winkler-the only cited case to
involve a constructive discharge claim-is not binding on this Court and features substantially
more severe alleged conduct. See Winkler, 200 F. Supp. 3d at 517-18 (featuring a complaint with
allegations that the defendant "touched [the plaintiff] in an intimate area inside her clothing while
making sexually charged remarks," that the defendant had been making sexually charged
comments and actions for nine months prior to the above-referenced incident, that the plaintiff
had previously informed management-level employees about the nine months of behavior, that
the defendant admitted to the inappropriate conduct and told management that he was impulsive
and had gotten into trouble before, and that, despite this confession, management took no action).
Thus, the cases cited by Roadman are inapposite because they either do not involve constructive
discharge claims or do not feature alleged misconduct that is comparable to the allegations of the
Amended Complaint.

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Lastly, this Court now dismisses Roadman' s constructive discharge claims with prejudice.
Whether to grant a party leave to amend a pleading is within the sound discretion of the trial
judge. Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir. 2003); Campbell v. M&T Bank,
Case No. 3:16-cv-118, 2018 WL 401523, at *12-*13 (W.D. Pa. Jan. 12, 2018) (Gibson, J.). This Court
has discretion to deny leave to amend if, inter alia, it is apparent from the record that the
amendment would be futile. Fraser, 352. F.3d at 116 (citing Foman v. Davis, 371 U.S. 17 (1962));

Campbell, 2018 WL 401523, at *12-*13. "Futility" challenges an amendment's legal sufficiency.
Foman, 371 U.S. at 182. In assessing futility, courts apply the same standard of legal sufficiency
as applied under Federal Rule of Civil Procedure 12(b)(6). In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1434 (3d Cir. 1997); see also Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289,
292 (3d Cir. 1988) ("Futility is determined by the likelihood that the content of the amendment
will survive a renewed motion to dismiss"). The Third Circuit has noted that "an amendment
would be futile when the complaint, as amended, would fail to state a claim upon which relief
could be granted." Id.
Roadman has already had the opportunity to remedy the specifically-identified
insufficiencies of her original Complaint. See Roadnuzn, 2017 WL 4236581. As discussed supra,
Roadman was unable to cure these insufficiencies, and nothing before the Court suggests that the
opportunity to file a third complaint would be any more successful. Therefore, the Court finds
that further amended would be futile and dismisses Roadman's constructive discharge claims
with prejudice. See Campbell, 2018 WL 401523, at *12-*13.

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VII.

Conclusion
For the reasons stated above, Defendants' Motion to Dismiss Amended Complaint in Part

(ECF No. 32) will be granted. In sum, the Amended Complaint fails to plausibly plead allegations
sufficient to establish a claim for constructive discharge under the standard articulated by the
United States Supreme Court and the United States Court of Appeals for the Third Circuit. See

Roadman, 2017 WL 4236581, at *3-*6; Bumbarger v. New Enterprise Stone and Lime Co., Inc., 170 F.
Supp. 3d 801 (W.D. Pa. 2016) (Gibson, J.) (offering an extensive discussion and case citations on
hostile work environment and constructive discharge claims).
Accordingly, Roadman' s Title VII claim and battery claims are dismissed with prejudice
only to the extent these claims assert constructive discharge claims. Otherwise, this Court takes
no action and offers no opinion as to the "basic" hostile work environment claim against Select
in Count 1, the negligence/negligent supervision claim against Select in Count 2, or the battery
claim against Lewis in Count 3.
A corresponding order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONNA ROADMAN,

Case No. 3:16-cv-246
JUDGE KIM R. GIBSON

Plaintiffs,

v.
SELECT SPECIALTY HOSPITAL and
RONALD LEWIS,

Defendants.
~

NOW, this

23

ORDER

day of January 2018, for the reasons set forth in the accompanying

Memorandum Opinion, Defendants' Motion to Dismiss Amended Complaint in Part (ECF No.
32) is GRANTED. It is HEREBY ORDERED as follows:
J. Plaintiff's Title VII claim (Count 1) against Defendant Specialty Hospital

Johnstown, Inc. is DISMISSED only to the extent it asserts a constructive
discharge claim.
2. Plaintiff's battery claim (Count 3) is DISMISSED only to the extent it asserts a

constructive discharge claim.
3. Plaintiff is DENIED leave to amend her Amended Complaint with respect to the

constructive discharge claims.

BY THE COURT:

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE