Opinion
Civil Action No. 03-CV-02941.
March 19, 2004
ORDER
NOW, this 19th day of March, 2004, upon consideration of Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment on Counts V, VI and VII of Plaintiff's Complaint, which motion was filed July 3, 2003; upon consideration of the Reply of Plaintiff, Leon E. Warmkessel, in Opposition to Motion of Defendant, East Penn Manufacturing Co., Inc., to Dismiss Pursuant to F.R.C.P. 12(b)(6), which reply was filed July 14, 2003; upon consideration of the briefs of the parties; after oral argument conducted before the undersigned October 31, 2003; and for the reasons expressed in the footnotes below,
IT IS ORDERED that defendant's motion to dismiss is granted in part and denied in part. IT IS FURTHER ORDERED that defendant's motion for summary judgment is denied without prejudice to refile after the close of discovery. IT IS FURTHER ORDERED that, by agreement of counsel, defendant's motion to dismiss Count V of plaintiff's Complaint is granted. IT IS FURTHER ORDERED that defendant's motion to dismiss Count VI of plaintiff's Complaint is denied. IT IS FURTHER ORDERED that defendant's motion to dismiss Count VII of plaintiff's Complaint is denied. IT IS FURTHER ORDERED that defendant shall have until on or before April 9, 2004 to file an Answer to plaintiff's Complaint.
A Rule 12(b)(6) motion to dismiss examines the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). In determining the sufficiency of the complaint the court must accept all plaintiff's well-pled factual allegations as true and draw all reasonable inferences therefrom in favor of plaintiffs. Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997).
[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.Conley, 355 U.S. at 47, 78 S.Ct. at 103, 2 L.Ed.2d at 85. (Internal footnote omitted.) "Thus, a court should not grant a motion to dismiss `unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Graves, 117 F.3d at 726 citing Conley, 355 U.S. at 45-46, 78 S.Ct. at 102, 2 L.Ed.2d at 84.
Defendant styles the within motion as both a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and one for summary judgment pursuant to Fed.R.Civ.P. 56(b). As more fully articulated below, we grant defendant's motion to dismiss on Count V of plaintiff's Complaint but deny defendant's motion on Counts VI and VII. We note that Counts I through IV of plaintiff's Complaint have not been attacked at this time. Thus, we conclude, in the interests of judicial economy, that a motion for summary judgment in this matter would be better addressed by the court, if appropriate, after the conclusion of discovery. Moreover, defendant did not provide any argument in either its brief or at oral argument why summary judgment, rather than simply analyzing the motion under the motion to dismiss standard would not be appropriate at this stage of the proceedings.
Accordingly, we deny defendant's motion for summary judgment without prejudice.
At oral argument counsel for plaintiff Jeffrey R. Elliott, Esquire, agreed to dismiss Count V of plaintiff's Complaint, alleging wrongful termination. Accordingly, we grant defendant's motion to dismiss by agreement of counsel.
On May 5, 2003 plaintiff Leon E. Warmkessel filed his Complaint alleging seven causes of action. Count I alleges sexual harassment pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) to 2000(e)-17, (Specifically 42 U.S.C. § 2000 e-2); Count II alleges sexual discrimination pursuant to 42 U.S.C. § 2000 e-2; Count III alleges sexual discrimination under the Pennsylvania Human Relations Act ("PHRA") Act of October 27, 1955, P.L. 744, No. 222, §§ 1-13, as amended, 43 P.S. §§ 951-963; Count IV alleges sexual harassment pursuant to the PHRA; Count V alleges wrongful termination; Count VI alleges intentional infliction of emotional distress; and Count VII alleges negligence. Counts III through VII are all brought pursuant to Pennsylvania state law.
Jurisdiction is based on federal question jurisdiction pursuant to 28 U.S.C. § 1331, 1343, 2201 and 2202 and 42 U.S.C. § 2000e-5(f). Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to the claims allegedly occurred in this judicial district. The court has pendent jurisdiction over the state law statutory and common law claims.
Based upon the allegations in plaintiff's Complaint, which we must accept as true for purposes of this motion, the operative facts are as follows. Defendant East Penn Manufacturing Co., Inc., ("East Penn") hired plaintiff on July 13, 1989 as a Maintenance Mechanic, and in 1994 he assumed the position of Fabrication Technician. From 1998 through June 13, 2002 he was continuously subjected to unwelcome sexual touchings, advances, overtures and comments by his supervisor Rodney Wahl. Plaintiff repeatedly rejected such sexual advances and also repeatedly complained to the Human Resources Department at East Penn about Mr. Wahl's conduct.
On June 13, 2002, plaintiff left his work area for several minutes to go to the company parking area to turn off the headlights on his car. Prior to going outside, plaintiff advised a supervisor and his co-workers of where he was going and why. Upon his return, Mr. Wahl accused plaintiff of violating work rules. Plaintiff told Mr. Wahl the reason he had left and that he had advised the appropriate persons and did so in a professional and courteous manner. However, plaintiff was terminated for alleged insubordination and disrespect to a supervisor. Plaintiff contends that this was in retaliation for his complaints of sexual harassment.
Plaintiff timely complained to the Pennsylvania Human Relations Commission ("PHRC") and the United States Equal Employment Opportunity Commission ("EEOC"). On February 20, 2003 the EEOC issued a Right to Sue letter.
In Count VI of his Complaint plaintiff asserts a state law cause of action for intentional infliction of emotional distress. Defendant argues that this claim should be dismissed because it is preempted by the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, art. III, § 303, as amended, 77 P.S. § 481(a). That Act provides, in pertinent part, that "the liability of an employer under this act shall be exclusive and in place of any other liability to such employees . . . in any action at law or otherwise on account of any injury or death defined in [§ 411] or occupational disease in [§ 27.1]."
The Act provides a single narrow exception to preemption, known as the personal animus exception, for "employee injuries caused by the intentional conduct of third parties for reasons personal to the tortfeasor and not directed against him as an employee or because of his employment." Durham Life Insurance Company v. Evans, 166 F.3d 139, 160 (3d Cir. 1999). In Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745 (1998) the Supreme Court of Pennsylvania held that the Worker's Compensation Act will not bar an action for intentional infliction of emotional distress where the injury to the employee arose from harassment which was personal in nature and was not a proper part of the employer-employee relationship. However, the Court stated that a legally cognizable claim for intentional infliction of emotional distress must be based upon conduct that "was 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." 554 Pa. at 151, 720 A.2d at 754.
Specifically, we find that the acts of sexual harassment as alleged by plaintiff in his Complaint were personal in nature and not part of the proper employer/employee relationship. Plaintiff's specific allegations include among others: that Mr. Wahl would touch, grab or pinch plaintiff's groin, nipples, buttocks and genitals; that Mr. Wahl would look under bathroom stalls when plaintiff was using the bathroom; that Mr. Wahl would often creep up behind plaintiff and thrust his hips against plaintiff's buttocks, simulating a sexual act; and that plaintiff repeatedly complained about this activity to the Human Resources Department of East Penn and that no action was taken. The type of conduct alleged by plaintiff, together with the allegation that plaintiff informed defendant of the conduct and defendant allegedly did nothing, leads us to conclude that plaintiff has set forth the type of outrageous conduct contemplated by the Supreme Court of Pennsylvania.
Thus, because we conclude that all of these actions are personal in nature and outside the scope of the normal employer/employee relationship, and because we conclude that the behavior alleged in plaintiff's Complaint is of sufficient egregiousness, we conclude that plaintiff alleges a cause of action in Count VI, which is excepted from preemption by the Workmen's Compensation Act under the personal animus exception.
Accordingly we deny defendant's motion to dismiss Count VI of plaintiff's Complaint.
In Count VII of his Complaint, plaintiff alleges a claim of negligence. Defendant argues that plaintiff's claim of negligence is preempted by the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, art. III, § 303, as amended, 77 P.S. § 481. The Supreme Court of Pennsylvania has held that an employee's claims of negligence in failing to maintain a safe workplace where the employee is injured by a co-worker for purely personal reasons is not preempted by the Act. Kohler v. McCrory Stores, 532 Pa. 130, 136-37, 615 A.2d 27, 30 (1992). Moreover, this court has found that this rule applies where the injury sustained is the result of sexual harassment by a co-worker.Merritt v. Delaware River Port Authority, No. Civ.A. 98-3313, 1999 U.S. Dist. LEXIS 5896 (E.D. Pa. Apr. 20, 1999) (Padova, J.);Lezotte v. Allegheny Health Education and Research Foundation, No. Civ.A. 97-4959, 1998 U.S. Dist. LEXIS 6119, at *19-20 (E.D. Pa. May 1, 1998). Because the basis of Count VII is plaintiff's injury allegedly caused by a co-worker's sexual harassment in the workplace, we find that plaintiff's claim of negligence is not preempted by the Act.
Accordingly, we deny defendant's motion to dismiss Count VII of plaintiff's Complaint.