ROADMAN v. SELECT SPECIALTY HOSPITAL et al

Filing 83

MEMORANDUM OPINION AND ORDER granting 75 Motion for Partial Summary Judgment, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 2/5/2020. (dlg)

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

)

Case No. 3:16-cv-246

)

Plaintiff,

)

JUDGE KIM R. GIBSON

)
)

v.

)
)

SELECT SPECIALTY HOSPITAL and
RONALD LEWIS,

)

)
)

Defendants.

)

MEMORANDUM OPINION

I.

Introduction

This case arises from Defendant Select Specialty Hospital's ("Select") alleged
discrimination against Plaintiff in violation of Title VII of the Civil Rights Act of 1964 ("Title VII")
while she worked as a registered nurse ("RN") at Select. Pending before the Court is Defendants'
Motion for Partial Summary Judgment. (ECF No. 75.) The Motion is fully briefed (ECF Nos. 78,
81, 82) and ripe for disposition. For the reasons that follow, the Court GRANTS Defendants'
Motion.
II.

Jurisdiction and Venue

This Court has subject-matter jurisdiction because Plaintiff's Title VII claim arises under
federal law. 28 U.S.C. § 1331. This Court has jurisdiction over Plaintiff's state law claims because
they form part of the same case or controversy as her federal claim. 28 U.S.C. § 1367. Venue is
proper because a substantial part of the events giving rise to Plaintiff's claims occurred in the
Western District of Pennsylvania. 28 U.S.C. § 1391(b)(2).

III.

Factual Background
The following facts are undisputed unless otherwise noted. 1
A. Plaintiff Allegedly Experiences Sexual Harassment at Select
Plaintiff was employed by Select as a RN for a period of approximately seven weeks, from

July 7, 2015, through August 26, 2015. (ECF No. 7611.) During her second week of employment,
on July 13, Plaintiff met Ronald Lewis, another RN employed by Select, who was assigned to
conduct a portion of her training and orientation over a period of three weeks. (Id. 116-8.)
Plaintiff claims that, during her second and third weeks of training with Mr. Lewisspecifically between July 17 and July 19, 2015-Mr. Lewis: asked her on a date; stated in a text
message that they could "have a lot of fun;" grabbed her cheeks; put his arm around her; grazed
and patted her buttocks; called her "hon," "sexy," and "dear;" told her she looked "cute" or
"pretty;" and directed other innuendos towards her. (Id. 119-11.) Plaintiff further claims that,
on either July 27, 28, or 29, while she and Mr. Lewis were in one of Select's medication rooms
obtaining medication for a patient, Mr. Lewis allegedly grabbed her by the waist and rubbed his
crotch against her buttocks. (Id. 112.) Plaintiff did not work with Defendant Lewis again after
July 29, 2015, and otherwise had no interaction with him after that date. (Id. 113.)

The Court derives these facts solely from Defendants' Statement of Undisputed Material Facts. (ECF No.
76). Plaintiff filed no responsive statement of material facts, which was due on July 1, 2019. (ECF No. 80.)
Under the Local Rules of Court of the United States District Court for the Western District of Pennsylvania,
"[a]lleged material facts set forth in the moving party's Concise Statement of Material Facts ... will for the
purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or
otherwise controverted by a separate concise statement of the opposing party." LCvR 56(E); see also
Practices and Procedures of Judge Kirn R. Gibson at 28-29 (same). Accordingly, the Court deems all the
facts in Defendants' Statement of Undisputed Material Facts (ECF No. 76) to be admitted by Plaintiff.
1

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B. Plaintiff's Reports Mr. Lewis's Alleged Conduct to Select
Plaintiff had received Select' s anti-harassment policies, and was aware that, if she believed
she had experienced sexual harassment, she was to report it to her supervisor, Chief Nursing
Officer Danielle Smorto. (Id. <_[<_[ 19, 22-23). Plaintiff first reported Mr. Lewis's alleged conduct
to Staffing Coordinator Renee Lightcap on August 3, 2015. (Id. <_[ 14.) Plaintiff spoke to Ms.
Lightcap because Ms. Smorto had been away on vacation since July 31, 2015. (Id. <_[ 18.) Plaintiff
requested that Select assign her a different trainer because Mr. Lewis purportedly made her feel
uncomfortable with alleged inappropriate comments and touching. (Id.<_[<_[ 15-16.) Ms. Lightcap
assigned Plaintiff to a different trainer, Ron Lindros, effective immediately. (Id. <_[ 17.) Plaintiff
did not report the medication room incident to Ms. Lightcap or to any member of management
until Ms. Smorto contacted her on August 11, 2015 to follow up on the allegations Plaintiff had
conveyed to Ms. Lightcap. (Id. <_[<_[ 16, 18, 21.)
Ms. Smorto called Plaintiff on August 11, 2015, to obtain further information from Plaintiff
regarding Mr. Lewis's alleged conduct. (Id. <_[ 26.) Ms. Smorto told Plaintiff that Select would
conduct an investigation and asked Plaintiff to submit a written statement of her allegations. (Id.
<_[ 28.) Plaintiff emailed a statement to Ms. Smorto on August 12, 2015, which Ms. Smorto then
forwarded to Human Resources Coordinator Matt Cost, Regional Human Resources Director
Barb Foster, and CEO Kelly Blake. (Id. <_[<_[ 27, 29, 34.) Ms. Smorto and Mr. Cost then met with
Mr. Lewis that same day and questioned him regarding the alleged inappropriate conduct. (Id.,
<_[ 39.) Mr. Lewis denied having touched Plaintiff inappropriately, stating that he only had put
his arm around her in a non-sexual manner when directing her to the next procedure in her
training. (Id. <_[ 40.) Ms. Smorto then suspended Mr. Lewis until Select completed its investigation
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of the matter and told Mr. Lewis that he could not have any contact with Plaintiff during the
investigation, he was prohibited from retaliating against her, and he was to behave in a respectful
and professional manner toward all of his coworkers at all times. (Id. <j[<j[ 41-43.) Prior to
Plaintiff's complaints, Select had never received any prior complaints regarding Mr. Lewis. (Id.
<J[

82.) Additionally, Plaintiff did not know of any other female employee who Mr. Lewis had

allegedly touched inappropriately or otherwise sexually harassed. (Id. <j[ 80.)
C. Select Interviews Plaintiff and Mr. Lewis

On August 13, 2015, Ms. Smorto and Mr. Cost reached out to Plaintiff and scheduled a
meeting with her on August 19 to discuss her complaint about Mr. Lewis. (Id. <j[<j[ 44-45, 50.) In
the interim, Ms. Smorto and Mr. Cost conducted a follow-up meeting with Mr. Lewis, during
which they further reviewed Plaintiff's allegations with him, and Mr. Lewis maintained his denial
of the allegations. (Id. <j[<j[ 47-48.) Ms. Smorto and Mr. Cost told Mr. Lewis that he would not be
disciplined at that time because the allegations were currently unsubstantiated, but also
reminded him that he must behave in a professional manner toward Plaintiff and refrain from
any retaliation. (Id. <j[ 49.) Ms. Smorto and Mr. Cost interviewed no other employees because
Plaintiff was unable to identify anyone who purportedly had any knowledge related to her
allegations. (Id. <j[ 36.) Had Plaintiff identified any witnesses, Ms. Smorto and Mr. Cost would
have interviewed them. (Id. <j[ 37.)
Plaintiff met with Ms. Smorto and Mr. Cost on August 19, 2015, to discuss her complaint
against Mr. Lewis. (Id. <j[ 51.) Plaintiff told Ms. Smorto and Mr. Cost that Mr. Lewis had sent her
text messages, screenshots of which she then provided to Select. (Id. <j[ 54.) After the August 19
meeting, Plaintiff informed Select that Jamie Cotterman, another RN, had information regarding
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Mr. Lewis's alleged conduct. (Id. 1 55.) Ms. Blake, Ms. Smorto, and Mr. Cost interviewed Ms.
Cotterman on August 25, 2015, and she told them that Mr. Lewis may have asked her out when
she first began working at Select, but that he did not ask her out again after she declined. (Id. 11
56, 58.) Ms. Cotterman told Ms. Blake that Mr. Lewis never touched her inappropriately, she
never saw Mr. Lewis act inappropriately, she never heard anyone complain about him, and she
never made any complaints to Select regarding any inappropriate behavior on his part. (Id. 11
59, 62-63.)
After meeting with Ms. Cotterman on August 25, 2015, Ms. Blake, Ms. Smorto, and Mr.
Cost interviewed Mr. Lewis for a third time and questioned him about his text messages to
Plaintiff. (Id.

1 64.) Ms. Blake told Mr. Lewis that Select expected complete professionalism from

him if he worked with Plaintiff again, told him to not put his arm around other employees, and
told him that he was not to retaliate against Plaintiff. (Id. 1166-68.)
D. Select Concludes the Investigation and Plaintiff Resigns
After concluding the interviews, Ms. Blake, Ms. Smorto, and Mr. Cost called Plaintiff on
August 25 to inform her of the results of the investigation. (Id. 169.) Ms. Blake told Plaintiff that
Select would move her to the opposite weekend rotation from Mr. Lewis and would make every
effort to schedule them on separate days or separate units. (Id. 11 70-71.) However, Ms. Blake
explained to Plaintiff that it would not be possible to guarantee that she and Mr. Lewis would
never have to work together, and that they might have to do so in the event of unexpected calloffs by other employees, emergencies, or other situations involving patient needs. (Id. 1171-74,
78.) Ms. Blake told Plaintiff what Select had discussed with Mr. Lewis and that he agreed to abide
by Select's expectations of professionalism. (Id. 175.) Ms. Blake also told Plaintiff that, if Plaintiff
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experienced any further problems with Mr. Lewis, Select had an open-door policy under which
Plaintiff could bring her concerns to any member of management. (Id.)
Plaintiff responded that she was not willing to work with Mr. Lewis ever, and that if she
was scheduled to do so, she would call off from work. (Id. 1 76.) Plaintiff then stated that she
was not satisfied with Select's response to her allegations and was looking for other jobs and
would only continue working at Select until she found other employment. (Id. 1177, 79.) The
following day, August 26, 2015, Plaintiff emailed her resignation to Ms. Blake. (Id. 179.)

IV.

Procedural Background

On November 18, 2016, Plaintiff filed her Complaint with the Court. (ECF No. 1.) After
the Court partially granted Defendants' Partial Motion to Dismiss (ECF No. 28), Plaintiff filed an
Amended Complaint on October 20, 2017, asserting: (1) a claim of hostile environment against
Select under Title VII (Count I); (2) a state tort claim of negligence/negligent supervision against
Select (Count II); and (3) a claim of battery against Mr. Lewis under state law (Count Ill). (ECF
No. 30.) Defendants moved to dismiss the Amended Complaint in part (ECF No. 32) and the
Court dismissed Plaintiff's constructive discharge claims as asserted within Counts I and III. (ECF
No. 40.) Defendants answered the Amended Complaint on February 6, 2018. (ECF No. 41.)
On March 15, 2019, Defendants moved for partial summary judgment. (ECF No. 75.)
Plaintiff responded in opposition to the Motion on August 1, 2019 (ECF No. 81), to which
Defendants replied on August 15, 2019. (ECF No. 92.)

V.

Legal Standard
This Court will grant summary judgment "if the movant shows there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
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R. Civ. P. 56(a); Melrose, Inc. v. Pittsburgh, 613 F.3d 380,387 (3d Cir. 2010) (quoting Ruehl v. Viacom,

Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
There is a genuine issue of fact "if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see

also McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those that affect the
outcome of the trial under governing law. Anderson, 477 U.S. at 248. The Court's role is "not to
weigh the evidence or to determine the truth of the matter, but only to determine if the evidence
of record is such that a reasonable jury could return a verdict for the nonmoving party." Am.

Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). In deciding a summary
judgment motion, this Court "'must view the facts in the light most favorable to the nonmoving
party and draw all inferences in that party's favor."' Farrell v. Planters Lifesavers Co., 206 F.3d 271,
278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).
The moving party bears the initial responsibility of stating the basis for its motion and
identifying those portions of the record that demonstrate the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party opposing
summary judgment "may not rest upon the mere allegations or denials" of the pleading, but
"must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart

Corp., 260 F.3d 228,232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574,587 n.11 (1986)). "For an issue to be genuine, the nonmovant needs to supply more than
a scintilla of evidence in support of its position-there must be sufficient evidence (not mere
allegations) for a reasonable jury to find for the nonmovant." Coolspring Stone Supply v. Am. States

Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993); see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594
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(3d Cir. 2005) (noting that a party opposing summary judgment "must present more than just
bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue").

VI.

Discussion
A. The Court Grants Defendants' Partial Motion for Summary Judgment as to
Plaintiff's Title VII Claim
To establish a Title VII hostile work environment claim against her employer, the plaintiff

must prove: (1) the employee suffered intentional discrimination because of her sex; (2) the
discrimination was pervasive and regular; (3) the discrimination detrimentally affected the
plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in
that position; and (5) respondeat superior liability. Knabe v. Boury Corp., 114 F.3d 407,410 (3d Cir.
1997). Defendants challenge only the fifth element of the claim, respondeat superior liability.
(ECF No. 78 at 7.)
When the alleged harasser is a coworker,2 an employer is liable only if the plaintiff shows
that the employer failed to provide a reasonable avenue for complaint or, alternatively, if the
employer knew of, or should have known of, the harassment and failed to take prompt and
appropriate remedial action. Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d
Cir. 2009). Plaintiff concedes that Select took prompt action in response to her complaint. (ECF
No. 81 at 2.) Therefore, the only remaining issue is whether Select's response to Plaintiff's
complaint was appropriate remedial action.

2

The parties agree that Mr. Lewis was Plaintiff's coworker. (See ECF No. 78 at 7; ECF No. 81 at 1.)
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1. The Parties' Arguments
Defendants argue that Select' s response to Plaintiff's complaint was adequate as a matter
of law. (ECF No. 78 at 12.) When Plaintiff reported her discomfort in working with Mr. Lewis to
Ms. Lightcap, she immediately reassigned Plaintiff to another trainer for the remainder of her
orientation. (Id.) Ms. Lightcap conveyed Plaintiff's concerns to Ms. Smorto, Plaintiff's supervisor,
and Ms. Smorto promptly contacted Plaintiff on August 11 to discuss the matter. (Id.) After
speaking with Plaintiff, Ms. Smorto informed Mr. Gost, Ms. Foster, and Ms. Blake of the matter
and commenced an investigation. (Id.) Ms. Smorto met with Mr. Lewis on August 12 and
suspended him pending further investigation of Plaintiff's complaint. (Id.) Ms. Smorto told Mr.
Lewis that he was required to behave in a respectful and professional manner toward Plaintiff
and all coworkers, and that any retaliation was forbidden. (Id.) Once Plaintiff identified Ms.
Cotterman as an employee who could have knowledge pertinent to Plaintiff's allegations, Select
interviewed her. (Id.) When Select received copies of text messages between Plaintiff and Mr.
Lewis that purportedly supported her allegations, Select again interviewed Mr. Lewis and
reminded him of Select's expectation of professionalism. (Id.) Select moved Plaintiff and Mr.
Lewis to opposite weekend rotations and otherwise scheduled them separately to the extent that
it was feasible in light of patient care issues. (Id. at 12-13.) Select told Plaintiff that, in the event
she experienced any further alleged issues with Mr. Lewis, Select had an open-door policy under
which she could bring her concerns to any member of management. (Id. at 13.) After she initially
conveyed her complaint to Ms. Lightcap on August 3, Plaintiff did not experience any further
alleged unwelcome conduct from Mr. Lewis. (Id.) Defendants assert that this response was
appropriate and adequate to address Plaintiff's complaint. (Id.)
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Plaintiff responds that Select' s actions in response to her complaint were not adequate.
(ECF No. 81 at 2.) Plaintiff asserts that for Select's response to be adequate, Select must have
separated Plaintiff and Mr. Lewis so they would not be working in close proximity. (Id.) Plaintiff
asserts that because Mr. Lewis sexually assaulted Plaintiff in an isolated room, the minimum
appropriate remedy was total separation of the parties, which Select refused to provide. (Id. at
3.) Under Select' s proposed remedy, Plaintiff was left vulnerable to additional sexual assault. (Id.
at 7.)

2. Select's Response to Plaintiff's Complaint Was Adequate
A remedial action is adequate as a matter of law if it stops the harassment or is "reasonably
calculated" to end the harassment. Andreoli v. Gates, 482 F.3d 641, 644 & n.2 (3d Cir. 2007). The
remedy need not include discipline to be adequate. Mufti v. Aarsand & Co., 667 F. Supp. 2d 535,
551 (W.D. Pa. 2009) (citing Knabe, 114 F.3d at 413). Additionally, the employer's remedy does not
need to be adequate from the complainant's perspective. Knabe, 114 F.3d at 414. An employee
cannot dictate that the employer select a certain remedial action, such as demanding that the
alleged harasser be fired or transferred. Id.
The Court holds that Select's response to Plaintiff's complaint was reasonably calculated
to prevent any further sexual assault. Select immediately reassigned Plaintiff to another trainer
after she notified Select of her discomfort. Select then contacted Plaintiff and arranged to meet
with her in person to discuss her complaint. Select commenced an investigation and suspended
Mr. Lewis. Select attempted to substantiate Plaintiff's claim against Mr. Lewis and when Plaintiff
presented new information to Select-identifying Ms. Cotterman and providing the text
messages-Select investigated further. Select scheduled Plaintiff and Mr. Lewis separately to the
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extent that it was feasible in light of patient care issues. Select told Plaintiff that she could report
any further harassment to Select. Mr. Lewis and Plaintiff were separated after Plaintiff first
informed Select of the alleged harassment and had no further interactions and there were no
further allegations of harassment.
Plaintiff takes issue with the fact that Select could not guarantee that Plaintiff and Mr.
Lewis would never work the same shift. Select was not required to make such a guarantee. In
Knabe, for example, in response to a waitress's complaint that a manager was sexually harassing

her, the employer conducted an investigation, interviewed the parties and other witnesses,
reminded the alleged harasser of the restaurant's anti-harassment policy and the consequences
of violating the policy, and told the plaintiff to contact the restaurant if there was any further
harassment. 114 F.3d at 408. At the conclusion of the investigation, the employer told the plaintiff
that it could not corroborate her harassment claim and would not reprimand the alleged harasser.
Id. at 409. The plaintiff insisted that the employer discharge the alleged harasser or transfer him

to another restaurant, which the restaurant refused to do. Id. The Third Circuit held that the
employer's remedial action was adequate because it was reasonably calculated to prevent further
harassment and that the adequacy of the response was not dependent on the complainant's
requested action. Id. at 413-14.
In this case, Select took more remedial steps in response to Plaintiff's complaint than did

the employer in Knabe. Select responded to Plaintiff's complaint by immediately separating
Plaintiff and Mr. Lewis and reassigning her to another trainer, which did not occur in Knabe. Since
the separation on August 3, Plaintiff did not report nor experience any further harassment from
Mr. Lewis. Although Plaintiff wanted a guarantee from Select that she would never have to work
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in proximity with Mr. Lewis, this was a guarantee Select stated it could not make. As a matter of
law, Select was not required to make this guarantee. Accordingly, Select's response to Plaintiff's
complaint was reasonably calculated to prevent further harassment and is adequate as a matter
of law.

B. The Court Grants Defendants' Partial Motion for Summary Judgment as to
Plaintiff's Negligence/Negligent Supervision Claim
1. The Parties' Arguments
Defendants argue that the PHRA preempts Plaintiff's negligence/negligent supervision
claim because her claim is based upon the same facts that give rise to her claim for sexual
harassment. (ECF No. 78 at 14.) Defendants assert that, in this claim, Plaintiff seeks to hold Select
liable for its alleged negligence in failing to prevent Mr. Lewis from allegedly sexually harassing
her and in enabling the harassment to occur by allegedly failing to protect Plaintiff from Mr.
Lewis. (Id. at 15.) These assertions make up a hostile work environment claim under the PHRA,
which examines whether an employer knew of, or should have known of, the harassment and
failed to take prompt and appropriate remedial action.

(Id.)

Defendants assert that both

Plaintiff's hostile work environment claim and negligence/negligent supervision claim are
governed by negligence principles. (Id. at 16.) By bringing common law tort claims of negligence,
Plaintiff is seeking to evade the statutory scheme provided by the PHRA by converting a hostile
work environment claim into a common law tort claim. (Id.)
Plaintiff provides no response to Defendants' assertions in her brief.

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2. The PHRA Preempts Plaintiff's Negligence/Negligent Supervision
Claim
For acts of employment discrimination, the PHRA "exclude[s] any other action, civil or
criminal based on the same grievance of the complainant concerned." 43 Pa. Stat. Ann.§ 962(b).
This provision of the PHRA "exclude[s] common law tort claims based upon discrimination
which could be remedied under the Act." Fantazzi v. Temple Univ., No. 00-cv-4175, 2001 WL
872455, at *2 (E.D. Pa. June 11, 2001) (citing Murray v. Commercial Union Ins. Co., 782 F.2d 432,437
(3d Cir. 1986)). The PHRA preempts negligence claims that allege a "failure to train, supervise
and investigate." Swanson v. Nw. Human Servs., Inc., No. 05-cv-3054, 2006 WL 3354145, at *6 (E.D.
Pa. Nov. 2, 2006), aff' d, 276 F. App'x 195 (3d Cir. 2008). Negligent supervision claims arising out
of employment discrimination cases in Pennsylvania must be brought under the PHRA. Randier

v. Kountry Kraft Kitchens, No. 1:11-cv-0474, 2012 WL 6561510, at *14 (M.D. Pa. Dec. 17, 2012). A
failure to bring a claim under the PHRA does not enable the claim to be brought as a common
law tort cause of action. Id. This is because "[i]f a common law action for the same claims were
recognized, it would give the claimant an opportunity to circumvent the carefully drafted
legislative procedures." Wolk v. Saks Fifth Ave. Inc., 728 F.2d 221,224 (3d Cir. 1984) (citing Bruffett

v. Warner Commc'ns, Inc., 692 F.2d 910,919 (3d Cir. 1982)).
The Court holds that the PHRA preempts Plaintiff's negligence/negligent supervision
claim because the claim, in essence, is a hostile work environment claim. In Plaintiff's negligent
supervision claim, Plaintiff alleges that: (1) other female employees reported prior harassment
from Mr. Lewis to Select; (2) Select failed to take appropriate matters to manage Mr. Lewis's
behavior and protect Plaintiff; (3) Select' s policies prohibiting sexual harassment were inadequate

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because they created "an atmosphere of silence" at Select; and (4) Select failed to monitor the
medication room where Mr. Lewis assaulted her. (ECF No. 30 11 49-64.) These allegations
support the same grievance in Plaintiff's hostile work environment claim. In that claim, Plaintiff
asserts that Select discriminated against her because of her sex by failing to take appropriate
action to prevent harassment at Select. In her negligence/negligent supervision claim, Plaintiff is
bringing a common law tort claim that could be remedied under the PHRA. Because her
allegations could be remedied under the PHRA, her claim is preempted. Plaintiff is not allowed
to assert this claim in a way that circumvents the PHRA's statutory framework. Accordingly, the
PHRA preempts Plaintiff's negligence/negligent supervision claim. 3

VII.

Conclusion
For the forgoing reasons, the Court grants Defendants' Motion.
An appropriate order follows.

Alternatively, even if the PHRA did not preempt Plaintiff's negligence/negligent supervision claim, the
Court would nevertheless dismiss the claim. Under Pennsylvania law, to establish a negligent supervision
claim, the plaintiff must show that that the employer knew or should have known that an employee would
have engaged in the alleged tortious conduct. Dempsey v. Walso Bureau, Inc., 246 A.2d 418, 422 (Pa. 1968).
Here, it is undisputed that Select received no complaints regarding Mr. Lewis other than Plaintiff's
allegations. (ECF No. 76 'JI 82.) Accordingly, Plaintiff cannot establish that Select could foresee Mr. Lewis's
alleged assault of Plaintiff.

3

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

Case No. 3:16-cv-246

)

)

Plaintiff,

)

JUDGE KIM R. GIBSON

)
)

v.

)
)

SELECT SPECIALTY HOSPITAL and
RONALD LEWIS,

)
)
)

Defendants.

)

ORDER

AND NOW, this

th of February, 2020, upon consideration of Defendants' Motion for
S- day

Partial Summary Judgment (ECF No. 75), and for the reasons set forth in the accompanying
Memorandum Opinion, it is HEREBY ORDERED that said Motion is GRANTED.

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE