McGovern v. Jack D'S, Inc.

Full title: JENNIFER LYNN McGOVERN, Plaintiff, v. JACK D'S, INC., t/a JACK D'S…

Court: United States District Court, E.D. Pennsylvania

Date published: Feb 3, 2004

CIVIL ACTION NO. 03-5547 (E.D. Pa. Feb. 3, 2004)

Opinion

CIVIL ACTION NO. 03-5547

February 3, 2004

MEMORANDUM AND ORDER

FRANKLIN VAN ANTWERPEN, District Judge

Plaintiff has filed a complaint with this court against Defendants Jack D's, Inc., ("Jack D's") and Giacomo and Leslie DiMaio ("the DiMaios"), individually, for sexual harassment (Count I), sexual discrimination (Count II), wrongful termination (Count III), intentional infliction of emotional distress (Count IV), negligence (Count V), and employment discrimination under the Pennsylvania Human Relations Act (PHRA) (Count VI). Before us now is Defendants' Motion to Dismiss all claims against the DiMaios, individually, and Counts III, IV, V, and VI against Jack D's, and Defendants' Motion to Strike Plaintiff's demand for a jury trial on her PHRA claim. For the reasons stated below we grant Defendants' Motion to Dismiss in part and deny it in part, and deny Defendants' Motion to Strike as moot.

I. Statement of Facts

Plaintiff has alleged the following facts. On or about January 1, 2003, Plaintiff began working as a waitress at Jack D's, a restaurant and bar located in Hamburg, Pennsylvania. Jack D's is owned by Jack and Leslie DiMaio. From the outset of her employment at Jack D's, Plaintiff was subjected to sexual comments, innuendos, and groping by two male co-workers, Gaspare DiMarco and Corey Cummings. Although Plaintiff repeatedly complained to them about the conduct of her co-workers, the DiMaios did not investigate the matter or take any sort of disciplinary action against DiMarco or Cummings. The harassment continued and on February 12, 2003, DiMarco forced Plaintiff into a dark area of the bar and raped her. Plaintiff reported the incident to the DiMaios and police, whereupon Mr. DiMaio called Plaintiff a "liar" and terminated her employment.

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a claim in whole or in part "for failure to state a claim upon which relief can be granted." In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all the allegations set forth in the complaint and must draw all reasonable inferences in favor of plaintiff's. See Ford v. Schering — Plough Corp., 145 F.3d 601, 604 (3d Cir. 1998). Dismissal is proper only if plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. Id.

III. Discussion

A. Defendants' Motion to Dismiss the DiMaios in their Individual Capacities

Defendants argue that Plaintiff's complaint against the DiMaios individually should be dismissed because piercing the corporate veil of Jack D's is not warranted. The issue of whether a corporate veil may be pierced is a matter of state law. See Star Creations Investment Co., Ltd. v. Alan Amron Development, Inc., 1995 U.S. Dist. LEXIS 11967, *34 (E.D. Pa. 1995). In Pennsylvania, there is no specific test for determining whether the corporate veil may be pierced. Plastipak Packaging, Inc. v. DePasquale, 75 Fed. Appx. 86, 88 (3d Cir. 2003), citing First Realvest, Inc. v. Avery Builders, Inc., 410 Pa. Super. 572, 600 A.2d 601, 604 (Pa.Super. 1991). Rather, the courts employ a "totality of the circumstances test." Plastipak, 75 Fed. Appx. at 88. Using this test, Pennsylvania courts have generally been willing to pierce the corporate veil "whenever necessary to prevent injustice." Id.,citing Rinck v. Rinck, 363 Pa. Super. 593, 526 A.2d 1221, 1223 (Pa.Super. 1987). Such a broad standard has invited the consideration of a variety of factors and theories when determining whether to pierce the corporate veil. As we understand her complaint, the principle theories which Plaintiff apparently relies on here are the equitable doctrine of piercing the corporate veil, the participation theory, and/or the "alter ego" theory.

Plaintiff argues that we should disregard the corporate entity in this case because it was used to "defeat public convenience, justify wrong either to third parties dealing with the corporation, or internally or between shareholders (derivative suits), perpetrate fraud or similar reprehensible conduct." Sam's v. Redevelopment Authority of New Kensington, 431 Pa. 240, 244, 244 A.2d 779, 781 (Pa. 1968). This is essentially the equitable doctrine of piercing the corporate veil, which is invoked "to prevent the perpetration of wrong; to prevent its use as a shield for illegal and wrongful conduct; or where its use, as a technical device, brings about injustice or an inequitable solution so that justice and public policy demand it be ignored." Wicks v. Milzoco, 503 Pa. 614, 620-21 (Pa. 1983). However, Plaintiff offers little to support the application of this doctrine to this case, merely stating that "[i]n the instant case, there has been both tortious and criminal conduct . . . Even accepting the allegations contained in Plaintiff's complaint as true, the existence of tortious and criminal conduct alone is not sufficient grounds for piercing the corporate veil. Pennsylvania courts generally find that "the corporate entity should be upheld unless specific, unusual circumstances call for the application of an exception." Zubik v. Zubik, 384 F.2d 267, 273 (3d Cir. 1967). Moreover, they have imposed limitations on the use of the "equitable doctrine of piercing the corporate veil," declining to apply it "where the rights of innocent parties are involved and the corporation is used for a legal purpose, as otherwise the entire theory of the corporate entity would be made useless." Wicks, 503 Pa. at 620-21. It is not enough, therefore, to allege that illegal or wrongful activities occurred at a corporation. The corporation itself must have been organized for the purpose of perpetrating the wrongs or shielding them when they occur. Plaintiff has not alleged here that Jack D's was created for an illegal purpose or that it exists to act as a shield for wrongful conduct or injustice. Therefore, the equitable doctrine of piercing the corporate veil does not compel us to pierce the corporate veil in this case.

Although she does not articulate it as such, Plaintiff alternatively, and indirectly, asserts the "participation theory," under which a corporate officer can be held individually liable as an actor for participating in tortious activity. See Wicks, 503 Pa. at 621. The Supreme Court of Pennsylvania has endorsed the following definition of "participation theory":

The general, if not universal, rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor; but that an officer of a corporation who takes no part in the commission of the tort committed by the corporation is not personally liable to third persons for such tort, nor for the acts of other agents, officers or employees of the corporation in committing it, unless he specifically directed the particular act to be done or participated, or cooperated therein.

Id. at 621-22, citing 3 A Fletcher,Cyclopedia of the Law of Private Corporations § 1137, p. 207 (perm. ed. rev. 1975). It appears from this definition that a corporate officer may only be held individually liable if he or she has taken some sort of affirmative act in furtherance of the alleged tort. Indeed, the court noted that corporate officers may only be held liable for misfeasance, and not "mere nonfeasance." Id. at 622. Accordingly, the Wicks court reasoned that the fact that "a corporate officer should have known the consequences of the liability — creating corporate act . . . is insufficient to create liability." Id. at 622-23. Since the plaintiff in Wicks alleged not only that the corporate officers of a home building company knew of an unreasonable risk, but that knowing this, they still ordered construction to proceed, the court held that such allegations were sufficient to defeat a motion to dismiss.Id. at 623.

Returning to the case at hand, we find that Plaintiff has failed to allege facts which would show that the DiMaios directed, participated, or cooperated in tortious conduct. Plaintiff has alleged that tortious and criminal conduct occurred, but she has not alleged that the DiMaios were complicit in it. Furthermore, although Plaintiff has alleged that she complained to the DiMaios and that they did nothing in response to investigate or stop the harassment, we believe that this failure to act does not rise to the level of affirmative action required by the court inWick, and is more akin to nonfeasance than misfeasance. As such, we find that under the facts alleged, the DiMaios could not be held individually liable under the "participation theory."

Finally, Plaintiff argues that the DiMaios should be held individually liable under the "alter ego" theory. Under the alter ego theory, the court may pierce a corporate veil in order to "prevent fraud, illegality or injustice, or when recognition of the corporate entity would defeat public policy or shield someone from public liability for a crime."Kaplan v. First Options of Chicago. Inc., 19 F.3d 1503, 1521 (3d Cir. 1994). citing Carpenter's Health Welfare Fund, 727 F.2d 279, 284 (3d Cir. 1983). A court will only proceed under this theory "if it is also shown that a corporation's affairs and personnel were manipulated to such an extent that it became nothing more than a sham used to disguise the alter ego's use of its assets for his own benefit in fraud of its creditors." Kaplan at 1521. Indicators that a corporation is an alter ego of an individual include:

failure to observe corporate formalities, non — payment of dividends, insolvency of the debtor corporation at the time, siphoning of funds of the corporation by the dominant shareholder, non — functioning of other officers or directors, absence of corporate records, and the fact that the corporation is merely a facade for the operations of the dominant stockholder or stockholders.

Id., citing United States v. Pisani, 646 F.2d 83, 88 (3d Cir. 1981).

In furtherance of her claim that the DiMaios are alter egos of Jack D's, Plaintiff alleges in her Amended Complaint that

8. The assets of Individual Defendants, Jack DiMaio and Leslie DiMaio, are one and the same as those of corporate Defendant, and the Individual Defendants and Corporate Defendant are alter egos of each other.

9. Corporate Defendant, is so closely affiliated with as to be an alter ego of the Individual Defendants. The actions of one are attributable, in whole or in part to the actions of the other.

Defendants argue that these statements are insufficient to withstand a Motion to Dismiss because they are conclusions of law and thus do not contain facts which could support a claim against the DiMaios. Defendant analogizes the instant case to Lumax Industries v. Mary Carol Aultman, 543 Pa. 38, 669 A.2d 893 Pa. 1995), in which the Pennsylvania Supreme Court held that a demurrer was improperly denied where the plaintiff merely alleged that the individual was the only person involved in the corporation and acted on behalf of herself and used the corporation to unjustly seek protection from the corporate form.Id. at 41. However, as Plaintiff correctly points out, Pennsylvania state courts require "fact pleading," which is a higher standard than the "notice pleading" required in federal courts.See Fed.R.Civ.P. 8. In support of this argument, Plaintiff cites a recent case from this court, in which the court denied a motion to dismiss an alter ego claim because "a plaintiff is not required to specifically plead the alter ego theory." Meshkov v. UNUM Provident Corp., 209 F. Supp.2d 459, 461 (E.D. Pa. 2002). In Meshkov, the court found that it was sufficient that the plaintiff alleged that the individual corporate defendants had acted on behalf of each other. Id. at 461. The court observed that, although the plaintiff might ultimately be unable to prove facts to justify piercing the corporate veil under the alter ego theory, it would have been premature to dismiss the plaintiff's alter ego claim at that time. Id.

Accordingly, we believe it would be premature to dismiss Plaintiff's alter ego claim at this stage in the instant case. Defendants are correct that Plaintiff states a conclusion of law when she alleges that Jack D's and the DiMaios are alter egos of each other. However, we believe her allegation that the actions of one are attributable to the other constitutes sufficient notice pleading to withstand a Motion to Dismiss. Although we have some doubts about Plaintiff's alter ego claim, it would be premature to dismiss the claims against the DiMaios without allowing Plaintiff to proceed with discovery. Thus we deny Defendants' Motion to Dismiss all claims against the DiMaios individually on this basis.

b. Defendants' Motion to Dismiss Counts I and II Against the DiMaios Individually

Defendants move to dismiss Counts I and II, alleging Title VII violations, against the DiMaios. Defendants rely on Sheridan v. E.I. DuPont de Nemours Co., 100 F.3d 1061, 1078 (3d Cir. 1996), to support their broad assertion that "[q]uite simply, the Third Circuit has held that individuals cannot be sued under Title VII." However, the Third Circuit has not settled the issue before us as firmly as Defendants would have us believe. Although the court stated quite clearly in Sheridan that it was "persuaded that Congress did not intend to hold individual employees (emphasis added) liable under Title VII," it said nothing about individual owners. Id. Hence the additional district court cases cited by Defendants to support their argument that if individual employees cannot be held liable, individual owners should not held liable either. See Milliner v. Enck, 1998 U.S. Dist. LEXIS 6651 (E.D. Pa. 1998); Harper v. Casey, 1996 U.S. Dist. LEXIS 9303 (E.D. Pa. 1996); Caplan v. Fellheimer Eichen Braverman Kaskey, 882 F. Supp. 1529 (E.D. Pa. 1995); Clarke v. Whitney, 907 F. Supp. 893, 895 (E.D. Pa. 1995). The most oft cited reason for this rationale is that since Congress made it clear that it wanted to protect small business from liability under Title VII, it certainly would not have wanted individual business owners to be exposed to liability. See Caplan, 882 F. Supp. at 1531. We believe that this is sound reasoning and we will adopt it here. Moreover, in light of the fact that Plaintiff acknowledges in her brief that there is no individual liability under Title VII, it is safe to assume she concedes the point. Thus we will grant Defendants' Motion to Dismiss Plaintiff's Title VII claims against the DiMaios individually.

c. Defendants' Motion to Dismiss Plaintiff's Wrongful Termination Claim

Defendants argue that Plaintiff's wrongful termination claim should be dismissed because it is preempted by the Pennsylvania Human Relations Act (PHRA). Pennsylvania courts have held that where a cause of action involves a violation of public policy for which a remedy already exists by statute, a common law cause of action will not be recognized. See Murray v. Commercial Union Ins. Co., 782 F.2d 432, 437 (3d Cir. 1986). However, where an alleged tort claim is procedurally and functionally different from the statute in question, it is not preempted. See Keck v. Commercial Union Insurance Co., 758 F. Supp. 1034, 1038 (M.D. Pa. 1991). citing Schweitzer v. Rockwell Int'l. 402 Pa. Super. 34, 586 A.2d 383, 388 (Pa.Super. 1990). Having analyzed the outcome of several precedential cases pertaining to PHRA preemption, our sister court has concluded that in Pennsylvania "a common law claim will not be preempted by the PHRA if it is factually independent of the discrimination claim." Keck, 758 F. Supp. at 1038. Thus, where, as is the case here, Plaintiff alleges that the wrongful termination constituted a public policy violation in that she was retaliated against for reporting a crime to the police, and not because of discrimination, we will not deem the claim automatically preempted by the PHRA. However, we must now consider whether Plaintiff has alleged facts pertaining to her termination which, if proven, could rise to the level of a public policy violation.

Although Pennsylvania recognizes the at — will employment doctrine, an exception to the doctrine is made when an employer terminates an employee for reasons which violate public policy. See Hennessy v. Santiago, 708 A.2d 1269, 1273 (Pa.Super. 1998). However, the public policy exception is a narrow one and is generally limited to cases in which (1) an employer requires an employee to commit a crime; (2) an employer prevents an employee from complying with a statutory duty; or (3) the discharge of the employee is specifically prohibited by statute. Id. Plaintiff has not supplied any cases to support her claim that Defendants' decision to terminate her for reporting to the police that she was raped by a co-worker either falls into one of the exceptions cited above or presents an additional public policy violation previously recognized by the courts. Moreover, Pennsylvania case law dictates that we refrain from making such a determination, since, with the exception of the three situations outlined above, determinations of public policy are matters best left to the legislature. See Donahue v. Federal Express Corp., 2000 Pa. Super. 146, 753 A.2d 238 (Pa.Super. 2000): see also Geary v. United States Steel Corp., 456 Pa. 171, 183, 319 A.2d 174 ( Pa. 1974): Hennessy, 708 A.2d at 1274: Hunger v. Grand Cent.Sanitation. 447 Pa. Super. 575, 670 A.2d 173, 176 ( Pa. Super. 1996): Holewinski v. Children's Hosp., 437 Pa. Super. 174, 649 A.2d 712, 715 (Pa.Super. 1994); Krajsa v. Keypunch, Inc., 424 Pa. Super. 230, 622 A.2d 355, 359-60 (Pa.Super. 1993). Furthermore, if there is any doubt as to whether this specific set of facts would be deemed a public policy violation by the Pennsylvania courts, we need only consider the facts of the Hennessy case. In Hennessey, the plaintiff, who was a counselor at a group home for the mentally disabled, complained that she was wrongfully terminated by her employer for assisting a resident in reporting a rape perpetrated by another resident. See Hennessey, 708 A.2d at 1272. The court held that the plaintiff's termination was not a violation of public policy because there was no requirement or authority that required the plaintiff to report the rape at all. Id. at 1274. As in Hennessey, there was no statutory requirement here that Plaintiff report the alleged rape. In the absence of a statutory or judicially recognized exception to the presumption of at-will employment, we must therefore dismiss Plaintiff's wrongful termination claim for failure to state a claim upon which relief can be granted.

d. Defendants' Motion to Dismiss Plaintiff's Negligence Claim

Defendants argue that Plaintiff's negligence claim should be dismissed because it is preempted by the PHRA. As stated above, with regard to Defendants' Motion to Dismiss Plaintiff's wrongful termination claim, common law tort claims which are functionally brought under the same circumstances as a statutory claim are preempted by the relevant statute.See Murray, 782 F.2d at 437. However, Plaintiff and Defendants cite several recent cases which reach opposite conclusions as to whether negligent supervision claims specifically are considered preempted by the PHRA.

Plaintiff cites to Armbruster v. Epstein, 1996 U.S. Dist. LEXIS 7459, * 13-14 (E.D. Pa. 1996), citing Keck, 758 F. Supp. at 1039, for the proposition that if the facts alleging discrimination would also support an independent claim of negligence, a finding of preemption is not appropriate. With regard to discrimination, the court cites Keek's holding that "'if all or part of the facts that would give rise to a discrimination claim would also independently support a common law claim, the common law claim is not preempted by the PHRA and need not be adjudicated within its framework.'" Id. Moreover, the court relies on the example given by the court inKeck that "'if an employer effected all the elements of intentional infliction of emotional distress upon an employee, and chose to do so because the employee was black, the employer may be found liable for discrimination as well as intentional infliction of emotional distress.'" Id. Based on its heavy reliance on the discussion in Keck, the Ambruster court then held that neither the negligent or intentional emotional distress claims made by the plaintiff were preempted. Id.

The court in Lezotte v. Allegheny Health, Education, and Research Foundation, 1998 U.S. Dist. LEXIS 6119 (E.D. Pa. 1998), also cited in Plaintiff's brief, similarly relies on Keck in holding that the PHRA does not preempt intentional infliction of emotional distress claims. Although we are concerned here with a negligence claim, Plaintiff presumably wishes to apply the reasoning quoted in Lezotte that "preventing otherwise valid tort law claims 'actually frustrates the purpose of the statute [the PHRA], the prevention and remediation of discrimination.'" Id., citing Schweitzer, 586 A.2d at 389. Plaintiff also cites Pryor v. Mercy Catholic Medical Center, 1999 U.S. Dist. LEXIS 16084, *10 (E.D. Pa. 1999), but we are uncertain as to how it is applicable to the issue at hand, since it holds that the Pennsylvania Workmen's Compensation Act (WCA) does not preempt negligent supervision claims. Thus it appears that Plaintiff has cited one case, Armbruster, which directly supports her argument that negligent supervision claims are not preempted by the PHRA, and one case which supports the proposition that intentional torts are not preempted by the PHRA.

Defendants, on the other hand, cite several cases to support their claim that negligent supervision claims are preempted by the PHRA. InFantazzi v. Temple, 2001 U.S. Dist. LEXIS 11598, *5-6 (E.D. Pa. 2001), the court drew upon the language of the PHRA in reaching its conclusion that the PHRA preempts negligent supervision claims.Id. Specifically, the PHRA states that "'the procedure herein provided shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil or criminal based on the same grievance of the complainant concerned.'" Id.,citing 43 Pa. Stat. Ann. § 962(b). According to the court, "[t]his provision was intended by the Pennsylvania legislature to exclude common law tort claims based upon discrimination which could be remedied under the Act. Id., citing Murray. 782 F.2d at 437. The court went on to say that because the plaintiff relied on the same set of facts to support both his discrimination and negligent supervision claims, the negligent supervision claim must be preempted by the PHRA.Id.

The other two cases cited by Defendants, and relied on by the court inFantazzi, are less instructive in explaining their holdings that negligent supervision claims are preempted by the PHRA, but are nonetheless consistent with Fantazzi. In Snead v. Hygrade Food Products Assoc., 1998 U.S. Dist. LEXIS 20296 (E.D. Pa. 1998), the court, noting that the plaintiff did not address the issue in its brief and, citing to Coney v. Pepsi Cola Bottling Co., 1997 U.S. Dist. LEXIS 7722 (E.D. Pa. 1997), stated that "[i]t is clear that these claims are barred by the WCA and the PHRA." In Coney, the court made a similarly cursory statement that negligent supervision claims are preempted by the PHRA, this time relying on Murray for the proposition that "the PHRA precludes tort claims premised on discrimination that may be remedied under the Act," 782 F.2d at 437, andKeck, for the proposition that a "common law claim is preempted by the PHRA unless factually independent of discrimination claim." 758 F. Supp. at 1039.

Although this litany of cases is admittedly far from clear in identifying generally which torts are preempted by the PHRA, we believe that the weight of authority cuts in favor of preemption with regard to negligent supervision claims. The crux of both the Keck andMurray cases is that where a statute provides a remedy for a certain type of injury, a common law action designed to redress the same injury is rendered superfluous. Thus unless a plaintiff can offer some other independent set of facts to support a claim not otherwise covered by the PHRA, such a claim is subject to preemption. Here, since Plaintiff has alleged the same set of facts to support her negligence claim as for her sexual harassment claim, we find that her negligence claim is preempted and we grant Defendants' Motion to Dismiss it.

e. Defendants' Motion to Dismiss Plaintiff's Intentional Infliction of Emotional Distress Claim

Defendants argue that Plaintiff's intentional infliction of emotional distress claim should be dismissed because Plaintiff has failed to state a claim upon which relief can be granted. In order for a claimant to recover for intentional infliction of emotional distress, the alleged conduct must be "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.'" Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 (Pa. 1998), citing Buczek v. First National Bank of Mifflintown. 366 Pa. Super. 551, 558 (Pa.Super. 1987). In the context of employment, courts are extremely reluctant to allow intentional infliction of emotional distress as a basis for recovery.See Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988).

As Plaintiff acknowledges in her brief, sexual harassment alone does not generally rise to the level of outrageousness necessary to constitute intentional infliction of emotional distress. See Hoy, 720 A.2d at 755. Accordingly, in Hoy, the court denied the plaintiff's intentional infliction of emotional distress claim because it held that the defendant's conduct, which included sexual propositions, physical conduct, and the posting of sexual pictures, was not sufficiently outrageous. Id. However, sexual harassment by an employer may be deemed sufficiently outrageous where an employer not only acquiesced in it, but actually participated in it, encouraged it, and retaliated against an employee. See Hare v. HR Industries, 2003 U.S. App. LEXIS 10304, **15 (3d Cir. 2003).

In the instant case, Plaintiff does not allege that Defendants participated in sexually harassing her, nor does she allege that they retaliated against her for complaining about the harassment. Rather, she alleges that they "acquiesced in the harassment, made light of McGovern's [Plaintiff's] complaints, and ignored McGovern's pleas for help." Pl.'s Reply Br. at 28. Thus we distinguish this case from the circumstances inHR Industries, in which the supervisors actually participated in the harassment. Consequently, we do not believe that Defendants' alleged acquiescence to Plaintiff's sexual harassment is sufficiently outrageous to state a claim upon which relief could be granted. Having disposed of this claim on these grounds, we need not consider whether Plaintiff's intentional infliction of emotional distress claim is preempted by the Pennsylvania Workmen's Compensation Act.

f. Defendants' Motion to Dismiss Plaintiff's PHRA Claim

Defendants move to dismiss Plaintiff's PHRA claim on the grounds that Plaintiff has failed to exhaust administrative remedies, as required by the Act, before asserting a cause of action in court. The PHRA requires, and the Supreme Court of Pennsylvania has interpreted it to require, that in order to bring a complaint under the PHRA, a complaint must first be filed with the Pennsylvania Human Resources Commission (PHRC). See Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917, 920 (Pa. 1988), citing 43 P.S. § 962(b). Once a complaint is filed, the PHRC retains exclusive jurisdiction over the matter for one year for purposes of investigation and conciliation of the matter. Id. Defendants argue that since Plaintiff filed her discrimination charge with the Equal Employment Opportunity Commission (EEOC) on or about April 3, 2003, and since notice that cross — charges were filed with the PHRC was not received by Defendants until May 23, 2003, Plaintiff did not meet the one year exclusive jurisdiction requirement when she filed a complaint with this court on October 27, 2003.

Plaintiff does not deny that she has failed to comply with the one year exclusive jurisdiction period. However, she argues that she was compelled to file prematurely, since, once she received her Notice of Right to Sue Letter from the EEOC on June 11, 2003, she had only 90 days to file a civil action, and that if she did not include all claims arising from this controversy at that time, such as the PHRA claim, her right to pursue them would have been lost under the doctrine of res judicata. See Alien v. McCurry, 449 U.S. 90, 94 (1980). Plaintiff cites no cases to support the notion that exceptions to the PHRA administrative requirements should be granted in such an instance. When this court has been faced with this difficulty in the past, it has granted the motion to dismiss for failure to exhaust administrative remedies, but granted the plaintiff leave to amend the complaint in accordance with the one year rule, once the one year period has elapsed.See Padgett v. The YMCA of Philadelphia, 1998 U.S. Dist. LEXIS 18693, *15 (E.D. Pa. 1998): McBride v. Bell of Pennsylvania. 1989 U.S. Dist. LEXIS 7177, *5-6 (E.D. Pa. 1989). Since we believe Plaintiff's PHRA claim would otherwise survive a motion to dismiss, we will grant Defendants' Motion to Dismiss Plaintiff's PHRA claim at this time, but grant Plaintiff leave to amend her complaint following the one year anniversary of the date on which the PHRC was notified of Plaintiff s complaint.

g. Defendants' Motion to Strike Plaintiff's Demand for a Jury Trial under the PHRA

Since we have granted Defendants' Motion to Dismiss Plaintiff's PHRA claim, Defendants' Motion to Strike Plaintiff's demand for a jury trial of her PHRA claims is rendered moot and we will deny it as such.

IV. Conclusion

Defendants' Motion to Dismiss is denied in part and granted in part. Specifically, Defendants' Motion to Dismiss all claims against the DiMaios individually is denied, since Plaintiff has alleged sufficient facts at this stage to support her alter ego theory of piercing the corporate veil. However, Plaintiff's Title VII claims, Counts I and II, are dismissed as to the DiMaios, because such claims are barred against individuals business owners. Plaintiff's wrongful termination, negligence, intentional infliction of emotional distress, and PHRA claims are dismissed as to all Defendants for failure to state a claim upon which relief can be granted. Finally, Defendants' Motion to Strike Plaintiff's demand for a jury trial for her PHRA claim is denied as moot. An appropriate order will follow.

ORDER

AND NOW, this 3^rd day of February, 2004, upon consideration of Defendants' Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) and Motion to Strike Pursuant to Fed.R.Civ.P. (12)(f), filed on December 29, 2003, and Defendants' Memorandum of Law in Support of Their Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) and Motion to Strike Pursuant to Fed.R.Civ.P. (12)(f), filed on December 29, 2003; Reply of Plaintiff, Jennifer Lynn McGovern, In Opposition to Motion to Dismiss and Motion to Strike of Defendants, filed on January 15, 2004; and Defendants' Reply Brief, filed on January 27, 2004, it is hereby ORDERED consistent with the foregoing Memorandum that Defendants' Motion is GRANTED in part and DENIED in part as follows:

1) Defendants' Motion to Dismiss Plaintiff's Title VII claims as to the DiMaios individually is GRANTED, and said claims are dismissed with prejudice;

2) Defendants' Motion to Dismiss Plaintiff's wrongful termination, intentional infliction of emotional distress, and negligence claims as to all Defendants is GRANTED and said claims are dismissed with prejudice;

3) Defendants' Motion to Dismiss Plaintiff's PHRA claim is GRANTED and said claim is dismissed without prejudice to Plaintiff's right to reassert this claim when the one year period has elapsed;

4) Defendants' Motion to Strike Plaintiff's Demand for a Jury Trial for her PHRA claim is DENIED at this time as moot;

5) Defendants' Motion is DENIED in all other respects.