Opinion
CIVIL ACTION NO. 03-5547
February 25, 2004
MEMORANDUM AND ORDER
Plaintiff filed a Complaint, and subsequently an Amended Complaint, with multiple counts against Defendants Jack D's, Inc., ("Jack D's") and owners Giacomo and Leslie DiMaio ("the DiMaios"), individually, on October 3, 2003, arising from alleged sexual harassment that occurred during her employment at Jack D's. On December 27, 2003, Defendants filed a Motion to Dismiss, which was granted in part and denied in part by this court in a Memorandum and Order dated February 3, 2004. See McGovern v. Jack D's. 2004 U.S. Dist. LEXIS 1985, *22 (E.D. Pa. Feb. 3, 2004). Now Plaintiff moves for reconsideration of the court's decision to dismiss her intentional infliction of emotional distress and negligence claims and deny individual liability of the DiMaios under the participation theory of piercing the corporate veil.
I. Facts
In January 2003, Plaintiff began working as a waitress at Jack D's, a restaurant and bar located in Hamburg, Pennsylvania. During her employment there, she was allegedly subjected to sexual harassment by two male co-workers and one of the owners, Giacomo DiMaio. Although Plaintiff complained repeatedly to the owners about the conduct, no attempt was made to investigate or stop the harassment. Approximately one month after she began her employment, Plaintiff alleges she was raped by one of her co-workers in the back of the restaurant. After she reported the incident to police and the DiMaios, her employment was terminated.
II. Standard of Review
A Motion for Reconsideration is appropriate to correct manifest errors of law or fact or present newly discovered evidence. See Max's Seafood Cafe by Lou Ann. Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Thus a judgment may only be altered or amended pursuant to a Motion for Reconsideration if a party can show (1) an intervening change in the law; (2) the availability of new evidence that was not previously available; or (3) the need to correct a clear error of law or fact or to prevent a manifest injustice. Id. A Motion for Reconsideration is not, however, "intended to give an unhappy litigant one additional chance to sway the judge." Macario v. Pratt Whittnev Canada, Inc., No. 90-3906, 1991 U.S. Dist. LEXIS 7429, *4 (E.D. Pa. 1991).
III. Discussion
a. Negligence
Plaintiff moves for reconsideration of our holding that her negligence claim was preempted by the Pennsylvania Human Relations Act (PHRA). In her reply brief to Defendants' Motion to Dismiss, Plaintiff relied principally on Armbruster v. Epstein, 1996 U.S. Dist. LEXIS 7459, * 13-14 (E.D. Pa. 1996), in which the court held that negligent or intentional infliction of emotional distress claims are not pre-empted by the PHRA where the facts that give rise to the discrimination claim also independently support a common law claim. However, as we noted in our Memorandum, there are several cases in the Eastern District of Pennsylvania which are contrary to the holding inArmbruster and which we found to be more persuasive authority. See Fantazzi v. Temple. 2001 U.S. Dist. LEXIS 11598 (E.D. Pa. 2001): Snead v. Hygrade Food Products Assoc., 1998 U.S. Dist. LEXIS 20296 (E.D. Pa. 1998); Coney v. Pepsi Cola Bottling Co., 1997 U.S. Dist. LEXIS 7722 (E.D. Pa. 1997).
The "clear error of law" alleged by Plaintiff stems from the fact that this court treated her negligence claim as a "negligent supervision" claim. Plaintiff does not support her argument with any legal authority as to how this characterization of her negligence claim resulted in a clear error of law or why the outcome would have been different had her claim not been characterized as negligent supervision. Plaintiff merely avers that her complaint alleges more than negligent supervision. Specifically, she notes that Paragraph 81 of her Amended Complaint states that Defendants were also negligent in:
f) failing to properly train supervisory personnel in federal, state and local laws, and company policies, rules and/or regulations against sexual harassment and discrimination on the basis of sex;
k) failing to have in place legally sufficient investigative practices and procedures and/or protocols for the handling of complaints and investigation of discrimination and/or sexual harassment.
We treated Plaintiff's negligence claim as a negligent supervision claim because we understand training of employees and investigating employee misconduct to be responsibilities commonly associated with the supervision of employees. As Plaintiff has not presented any authority to convince us otherwise, we see no reason to disturb this conclusion. However, whether we treat Plaintiff's claim as a negligent supervision claim or simply a negligence claim, our holding remains the same.
As we stated in our Memorandum, "the crux of both the Keck [Keck v. Commercial Union Insurance Co., 758 F. Supp. 1034 (M.D. Pa. 1991)] and Murray [Murray v. Commercial Union Ins. Co., 782 F.2d 432 (3d Cir. 1986)] 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." McGovern. 2004 U.S. Dist. LEXIS at *22. In the instant case, the PHRA does provide a remedy for sexual harassment of employees. Moreover, we stated that unless Plaintiff can allege a set of facts independent of her sexual harassment claim, her negligence claim is preempted., Id. Plaintiff did not allege an independent set of facts in her reply to Defendants' Motion to Dismiss and she does not now. As we understand it, Plaintiffs complaint is that Defendant's failure to train employees and investigate allegations of sexual harassment negligently caused her to be injured by sexual harassment, as described in her complaint. This would appear to be the same set of facts. In light of the fact that Plaintiff has presented no authority to support her claim of a "clear error of law," and finding no clear error of law upon our own review of our previous analysis, we can only conclude that Plaintiffs Motion for Reconsideration of her negligence claim is merely an attempt to reargue the issue. Thus we deny Plaintiff's Motion for Reconsideration as to her negligence claim.
b. Intentional Infliction of Emotional Distress
Plaintiff also moves for reconsideration of our decision to grant Defendants' Motion to Dismiss her intentional infliction of emotional distress claim. We dismissed this claim because under Pennsylvania case law, sexual harassment alone in the context of employment is not sufficiently outrageous to make out a claim of intentional infliction of emotional distress. Id., citing Hoy v. Angelone. 554 Pa. 134, 720 A.2d 745, 754 (Pa. 1998). A plaintiff must also allege that the employer participated in the sexual harassment and engaged in retaliatory conduct. Id., citing Hare v. HR Industries. 2003 U.S. App. LEXIS 10304, ** 15 (3d Cir. 2003).
Plaintiff argues that Defendants' Motion to Dismiss her intentional infliction of emotional distress claim was granted as a result of an error in fact. In applying Hoy and Hare, this court found that since Plaintiff did not allege that her employer participated in the harassment or retaliate against her for complaining about the harassment, her claim could not stand. However, as Plaintiff points out in her Motion for Reconsideration, the Amended Complaint does in fact allege that her employer, Giacomo DiMaio, participated in the sexual harassment by engaging in "unwelcome touching, sexual advances, overtures, and comments" toward Plaintiff. (Am. Compl. at para. 15.)
But as the court stated in Hoy, an intentional infliction of emotional distress claimant is also generally required to show she or he was retaliated against for rejecting sexual advances. Id. Plaintiff argues that her facts allege she was retaliated against and, had Plaintiffs own reply brief not argued otherwise, we might have agreed. However, with regard to her wrongful termination claim, Plaintiff specifically argued that she was not terminated for rejecting Mr. DiMaio's sexual advances, but because she reported the alleged rape to the police. Plaintiff's brief stated as follows:
McGovern asserts in the Amended Complaint that her employment was terminated for, in effect, reporting an unlawful act of which she was a victim. Had McGovern not spoken with the local police and, in effect, covered up the crime which had taken place, it is likely that her employment would not have been terminated.
Pl's Rep. Brief at 19-20. The case law only supports a claim of intentional infliction of emotional distress where the employer participated in the sexual harassment and then retaliated against the employee for rejecting the employer's sexual advances. Since Plaintiff has presented no legal authority to the contrary, we find that her intentional infliction of emotional distress claim was properly dismissed, in spite of the factual error regarding Mr. DiMaio's alleged participation in Plaintiff's sexual harassment.
Moreover, even if there was sufficient support for Plaintiff's intentional infliction of emotional distress claim, we believe it is preempted by the Pennsylvania Worker's Compensation Act (WCA). The WCA provides the exclusive remedy for injuries incurred during employment. See Durham Life Ins, v. Evans, 166 F.3d 139 (3d Cir. 1999). Plaintiff is correct that the personal animus exception permits intentional infliction of emotional distress claims in the context of employment where injury of an employee occurs as a result of harassment that is "personal in nature and not part of the proper employer — employee relationship." Hoy. 456 Pa. Super. 596, 691 A.2d 476, 482 (Pa.Super. 1997). However, the Pennsylvania Supreme Court has not yet ruled on whether intentional infliction of emotional distress claims caused by sexual harassment fall within the exception such that they would be excluded from preemption by the WCA and the lower courts remain split on the matter. See Brooks v. Mendoza, 2002 U.S. Dist. LEXIS 4991 (E.D. Pa. 2002).
In considering the issue, the Third Circuit has speculated that under Pennsylvania law, intentional infliction of emotional distress claims arising from sexual harassment would be preempted because "worker's compensation preemption extends to personal animosity that develops from work-related events" and because sexual harassment is a common workplace hazard. Durham. 166 F.3d at 160 n. 16. We believe this reasoning is sound and we adopt it here. Thus Plaintiff's Motion for Reconsideration with respect to her intentional infliction of emotional distress claim is denied.
c. Piercing the Corporate Veil under the Participation Theory
In our recent decision in this case, we held that it would be premature to deny Plaintiff the ability to pierce the corporate veil because she alleged sufficient facts under the alter ego theory to withstand a motion to dismiss. However, we also held that Plaintiff had not alleged sufficient facts to support the participation theory of piercing the corporate veil. Under the participation theory, a corporate officer may be held individually liable for participating in tortious activity by taking some affirmative step in furtherance of the tort. See Wicks v. Milzoco, 503 Pa. 614, 620-22 (Pa. 1983). Our decision to deny Plaintiff the opportunity to proceed under the participation theory was predicated on Defendant Giacomo DiMaio not having directly participated in the sexual harassment. However, as noted above, the Amended Complaint does in fact allege that Mr. DiMaio engaged in "unwelcome touching, sexual advances, overtures, and comments" toward Plaintiff. (Am. Compl. at para. 15.) Consequently, we will grant Plaintiff's Motion for Reconsideration with regard to the participation theory to the extent that it potentially allows her to pierce the corporate veil and recover from the DiMaios individually in the event that Jack D's, Inc., is found liable under Title VII.
IV. Conclusion
Plaintiff's Motion for Reconsideration is granted in part and denied in part. It is denied with regard to her negligence claim because Plaintiff has failed to demonstrate a clear error of law or fact. It is denied as to her intentional infliction of emotional distress claim because, in spite of a mistake of fact by this court in its previous analysis of the issue, the alleged conduct of the Defendants is not sufficiently outrageous and even it were, such a claim is preempted by the WC A. Finally, Plaintiffs Motion is granted with regard to the participation theory of piercing the corporate veil to the extent that she is permitted to invoke it in the event that Jack D's, Inc., is found liable under Title VII.
ORDER
AND NOW, this 25th day of February, 2004, upon consideration of the Motion of Plaintiff, Jennifer Lynn McGovern, for Reconsideration, filed on February 9, 2004, and brief in support thereof, filed on February 9, 2004; and Defendants' Brief in Opposition to Plaintiffs Motion for Reconsideration, filed on February 17, 2004, it is hereby ORDERED that:
1) Plaintiffs Motion for Reconsideration is DENIED with respect to her negligence and intentional infliction of emotional distress claims;
2) Plaintiff's Motion for Reconsideration is GRANTED with respect to her ability to invoke the participation theory of piercing the corporate veil and our prior order of February 3, 2004, is deemed modified accordingly.