Opinion
Civil Action No. 97-4959.
May 1, 1998
MEMORANDUM AND ORDER
In the fall of 1996, the plaintiff, Rennae Lezotte ("Lezotte"), alleges she was sexually harassed by a co-employee, Drew Henderson ("Henderson"), while working for Allegheny Health Education and Research Foundation ("AHERF"). Compl. ¶¶ 19-24. She further states that when she complained about Henderson's behavior, AHERF and its agents not only failed to investigate Lezotte's complaints, but terminated her from her employment.Id. ¶¶ 51, 81. After pursuing administrative remedies, the plaintiff filed suit against AHERF, Henderson, John Evans ("Evans"), Jeff Green ("Green"), Gilbert Pongan ("Pongan"), and Leonore Yarrow ("Yarrow"). The defendants have now moved to dismiss Counts II-IX of the plaintiff's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow I will grant in part and deny in part the defendants' request.
I. Standard governing motions to dismiss
The defendants have filed a motion to dismiss for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6) (West 1996). At this stage of the litigation, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73 (1984). Thus, in considering a motion to dismiss, "all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party." Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987).
In the alternative, the defendants attempt to convert this motion to dismiss into one for summary judgment. FED. R. CIV. P. 56(c). Accordingly, they have submitted evidence outside of the pleadings for the court's consideration. However, because the discovery deadline has been extended to June 20, 1998, I will not consider the extrinsic evidence, but will treat the motion only as one under Rule 12(b)(6). See International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990) (ruling on summary judgment should be deferred until parties have had opportunity to develop adequate factual record).
II. Background
For purposes of a motion to dismiss, I must take all of the facts alleged in the complaint as true. They are as follows.
During 1996, Lezotte worked as a registered nurse in the Children/Adolescent Psychiatric Unit of the defendant AHERF. Compl. ¶ 20. On August 24, 1996, Henderson, an employee of AHERF who had been assigned to work with Lezotte, approached her and made lewd remarks and gestures.Id. ¶ 26-27. Later that same day, Henderson pinned Lezotte up against her locker and made "grinding movements" against her body. Id. ¶ 34. Lezotte pushed him away and told him to stop.Id. ¶ 36.
Several days later, Lezotte verbally reported these incidents to her supervisors and filed a formal, written complaint against Henderson with Ms. Brown, a sexual harassment counselor. Id. ¶¶ 41-42. Neither AHERF nor its agents investigated Lezotte's complaints. Id. ¶ 46. Instead, AHERF permitted Lezotte "to float" on work assignments until September 30, 1996, so that she could temporarily avoid Henderson. Id. ¶ 49. Realizing that AHERF would not reprimand Henderson and that eventually she would have to work with him again, Lezotte became ill and was unable to come to work from September 4 through 9, 1995. Id. ¶¶ 52-54.
On September 10, the day she returned to work, the defendants Pongan and Yarrow met with Lezotte and handed her a written "Employee Relations Report." Id. ¶ 60. The report falsely alleged that unnamed co-workers and patients complained that Lezotte "discussed sexual topics with patients and co-workers, called co-workers names in front of patients and was disorganized in providing patient care." Id. The written statements in this report were communicated to Mary Rita Duval-Brown of the Pennsylvania Nurse's Association. Id. ¶ 69. On the same day that the defendants confronted Lezotte with this report, AHERF placed Lezotte on administrative leave without pay, ostensibly to investigate these claims. Id. ¶ 75. At a hearing held on September 25, 1996, AHERF and its agents verbally repeated the abovementioned allegations and accused Lezotte of abusing patients and drugs. Id. ¶ 78. On October 1, 1996, Evans, the director of patient care at AHERF, discharged Lezotte from her position as a registered nurse at AHERF. Id. ¶ 83.
Based on the aforementioned allegations, Lezotte asserts the following causes of action in her complaint: sexual harassment and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) and (2) (Count I); retaliation in violation of 42 U.S.C. § 2000e-3 based upon alleged complaints of sex and race discrimination (Count II); violation of the Fourteenth Amendment and violation of 42 U.S.C. § 1985(2) for conspiracy to violate Lezotte's Fourteenth Amendment rights (Count III); assault (Count IV); battery (Count V); defamation (Count VI); negligent supervision (Count VII); wrongful discharge (Count VIII); and breach of implied contract (Count IX). The defendants ask the court to dismiss Counts III-IX, and that portion of Count II stating a claim for retaliation based on the plaintiff's complaints about race discrimination. Mot. Dismiss at 1. In her response memorandum, the plaintiff withdraws the following two counts: Count II, to the extent that it states a claim for retaliation based on complaints of race discrimination and Count IX, for breach of implied contract. Resp. Mem. at 10, 24. As to her remaining claims, she either opposes the defendants' motion or, where necessary, seeks leave to amend her complaint.
III. Discussion A. 42 U.S.C. § 1985 (Count III)
In Count III of the complaint Lezotte alleges that the defendants violated both the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1985(2) (1994). State action is a necessary predicate to a claim for a violation of the Fourteenth Amendment. See Versage v. Township of Clinton, 984 F.2d 1359 (3d Cir. 1993). Thus, Count III, as the plaintiff has structured it in the complaint, fails to allege all of the necessary elements to this claim.
42 U.S.C. § 1985(2) provides:
(2) Obstructing justice; intimidating party, witness, or juror
. . . [I]f two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny any citizen the right to equal protection of the laws, or to injure him . . . for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.
Perhaps realizing this inadequacy, in her response memorandum Lezotte withdraws this claim and attempts to refashion the cause of action as one under 42 U.S.C. § 1985(3) for redress of the plaintiff's First Amendment rights. "[A]n alleged conspiracy to infringe First Amendment rights is not a violation of § 1985(3) unless it is proved that the state is involved in the conspiracy or that the aim of the conspiracy is to influence the activity of the state." Carpenter v. Scott, 463 U.S. 825, 830 (1983). Like her original cause of action, Lezotte's proposed amendment fails to allege that state, rather than private, action infringed her First Amendment rights. Resp. Mem. at 12-13. Thus, the court will dismiss Count III of the plaintiff's complaint and will deny the plaintiff leave to amend it because her proposed changes are futile. See Smith v. NCAA, Nos. CIV.A. 97-3346, 97-3347, 1998 WL 111526, *8-9 (3d Cir. March 16, 1998) (the district court may refuse to allow a proposed amendment that fails to state a cause of action).
(3) Depriving persons of rights or privileges
42 U.S.C. § 1985
. . . [I]n any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, where by another . . . is deprived of having or exercising a right or privilege of a citizen of the United States, the party so injured or deprived may have an action . . . against any one or more of the conspirators.
B. Assault and Battery (Counts IV and V)
In Counts IV and V, the plaintiff asserts state law claims for assault and battery against the defendants Henderson and AHERF. Compl. ¶ 103-07. The court finds that the plaintiff's assault and battery claims against Henderson survive the motion to dismiss. Furthermore, the court will grant the plaintiff's motion to amend Counts IV and V as to the defendant AHERF.
i. The assault and battery claims are not preempted by the PHRA.
As their first line of defense, the defendants argue that the exclusivity provision of the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq., preempts the assault and battery claims. I disagree.
The exclusivity provision of the PHRA provides:
[A]s to acts declared unlawful by section five of this act [entitled "Unlawful discriminatory practices"] the procedures 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.43 P.S. § 962(b) (Supp. 1995).
The Pennsylvania Supreme Court has held that "the PHRA provides a statutory remedy that precludes assertion of a common law tort action for wrongful discharge based upon discrimination." Clay v. Advanced Computer Applications, Inc., 559 A.2d 917, 918 (Pa. 1989). In arriving at this holding, the court first noted that "as a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship." Id. It also pointed out that the legislative intent behind the PHRA was "that the [Pennsylvania Human Relations Commission ("PHRC")] would bring to bear particular expertise in handling discrimination cases." Id. Thus, most wrongful termination claims must be remedied pursuant to an action under the PHRA. Id.; see also Murray v. Commercial Union Ins. Co., 782 F.2d 432, 436 (3d Cir. 1986).
Lezotte's assault and battery claims do not circumvent Pennsylvania's wellestablished employment at-will doctrine or the PHRA's procedures for addressing wrongful termination claims. Rather, as in Fawcett v. IDS Financial Services, Inc., 1986 WL 9877 at * 3, these counts "are independent claims that seek to redress interests that are distinct from those protected by the PHRA." Thus, as found in Keck v. Commercial Union Insurance Co., 758 F. Supp. 1034, 1039 (M.D. Pa. 1991), "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."
For example, "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. at 1038; see also Armbruster v. Epstein, No. CIV.A. 96-1059, 1996 WL 289991, at *5 (E.D. Pa. May 31, 1996) (PHRA does not preempt claims for intentional torts). In fact, preventing otherwise valid tort law claims "actually frustrates the purpose of the statute [the PHRA], the prevention and remediation of discrimination."Schweitzer v. Rockwell Int'l, 586 A.2d 383, 389 (Pa.Super. 1990) (intentional infliction of emotional distress claim survives along with sexual harassment claim), appeal denied, 600 A.2d 954 (Pa. 1991).
Lezotte's assault and battery claims arise from the same set of facts that make up her discrimination claims. Moreover, Lezotte's allegations, if true, would independently support the instant state law claims. Thus, the PHRA does not preempt the assault and battery claims against Henderson or AHERF.
ii. The plaintiff's assault and battery claims are not preempted by the PWCA
Alternatively, the defendants argue that Lezotte's assault and battery claims are preempted by the Pennsylvania Worker's Compensation Act ("PWCA") because the PWCA is the exclusive source of an employer's liability for injuries arising in the course of an employee's employment. Dugan v. Bell Telephone of Pa., 876 F. Supp. 713, 723 (W.D. Pa. 1994). While the PWCA's exclusivity provision generally grants an employer immunity from lawsuit by employees for intentional torts arising out of the employment context, under limited circumstances, it can expose an employer to liability for the tortious conduct of third parties.See Poyser v. Newman Co. Inc., 522 A.2d 548, 550 (Pa. 1987). This exception to the PWCA's exclusivity provision, known as the "third party attack" exception, allows recovery against an employer for "an injury caused by an act of a third party intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment." 77 P.S. § 411(1) (Supp. 1990).
Of primary importance to this "third party attack" exception is the motivation behind the injurious act. Armbruster, 1996 WL 289991, at *5. If the third party would have attacked a different person in the same position, then the injury falls within the PWCA and is not actionable. Where, on the other hand, the third party's actions are motivated by animus against the particular person injured, such injury falls outside of the PWCA's purview.Brooks v. Marriot Corp., 522 A.2d 618, 621 (Pa.Super. 1987).
Finally, this court and the Superior Court of Pennsylvania have recognized that co-employees fall within the definition of a "third party" under the PWCA. Armbruster, 1996 WL 28991, at *5; Schweitzer, 586 A.2d 383, 391 (Pa.Super. 1990), appeal denied, 600 A.2d 954 (Pa. 1991). Thus, the relevant inquiry in this type of PWCA preemption analysis is not the third party's status as a co-employee but whether the party claiming exemption from the PWCA's requirements can show that the injury was caused by personal, rather than work-related reasons.See Schweitzer, 586 A.2d at 391.
Here, the allegations suggest that Henderson harbored personal feelings toward the plaintiff and that these feelings instigated Henderson's actions. As such, the PWCA does not preempt Lezotte's assault and battery claims.
iii. Respondeat Superior
Asserting assault and battery claims which are excepted from both the PWCA's and PHRA's preemptive clauses, the plaintiff must, of course, articulate a legal theory upon which to establish her employer's liability for the intentional torts of its employee. Here, Lezotte contends that AHERF, Henderson's employer, is liable for Henderson's allegedly tortious conduct under the doctrine of respondeat superior.
In Pennsylvania, an employer may be held liable for the tortious conduct of its servants only if that conduct falls within the servant's scope of employment. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1276 (3d Cir. 1979);Butler v. Flo-Ron Vending Co., 557 A.2d 730, 736 (Pa. 1989);see also RESTATEMENT (SECOND) OF AGENCY, § 219 (1958). Conduct of a servant is not within the scope of employment if it is "different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master."Butler, 557 A.2d at 736 (quoting RESTATEMENT (SECOND) OF AGENCY, § 228). If the facts alleged fail to support a reasonable inference that the servant was acting in furtherance of his employer's business, the servant's conduct falls outside of the scope of employment as a matter of law. Ceesay v. Miller, Mason, Dickenson, No. CIV.A. 902800, 1990 WL 121218, at *6 (E.D. Pa. Aug. 15, 1990); Johnson v. Glenn Sand and Gravel Co., 453 A.2d 1048, 1050 (Pa.Super. 1982); Shuman Estate v. Weber, 419 A.2d 169, 173 (Pa.Super. 1980).
In her complaint, the underlying bases for Lezotte's assault and battery claims are Henderson's sexual comments and uninvited touching. Compl. ¶¶ 26-35. In her response memorandum, however, the plaintiff attempts to alter this count to some extent, claiming that "Henderson's acts were part of a larger conspiracy" and that whether or not they were "in furtherance of retaliation on behalf of defendant AHERF is disputed." Resp. Mem. at 16. Thus, Lezotte argues that Henderson committed these acts in furtherance of AHERF's interests. Although the allegations in the complaint imply otherwise, the court recognizes that "leave [to amend] shall be freely given when justice so requires" and will grant the plaintiff's motion to amend the assault and battery claims against AHERF. The court would caution the plaintiff, however, that choosing to amend the complaint to state a cause of action for assault and battery against AHERF may be detrimental to some of the plaintiff's other claims. See e.g. Ceesay, 1990 WL 121218, at *7 (where court found that intentional tort claim not preempted by PWCA because employee acted with personal motives it necessarily followed that the employer could not be held liable for the claim on the basis of respondeat superior).
C. Defamation (Count VI)
i. Section 301 of the Labor Management Relations Act ("LMRA") does not preempt the plaintiff's defamation claim
The defendants argue that the Lezotte's state law defamation claim is preempted by § 301 of the LMRA, 29 U.S.C. § 141 et. seq. (1973). I disagree.
When the resolution of a state law claim "is substantially dependent upon analysis of the terms of an agreement between the parties in a labor contract, that claim must be either treated as a § 301 claim or dismissed as preempted by federal labor-contract law." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985) (citation omitted) (emphasis supplied). The defendants argue that the defamation claims are preempted because "the alleged publications took place in the collective bargaining context and [the analysis of the claims] will necessarily involve the scope of AHERF's privilege under the Agreement." Def.'s Motion to Dismiss at 26. The contours of such a privilege, however, depend on the provisions in the collective bargaining agreement and resolution of the privilege issue requires the court to interpret that agreement. Peek v. Philadelphia Coca-Cola Bottling Co., No. CIV.A. 97-3372, 1997 WL 399379, at *3 (E.D. Pa. July 16, 1997). For example, "notices of dismissal for cause which are contemplated by a collective bargaining agreement and which are published by the employer only to those with a legitimate interest in the subject matter may not be made the subject of an action in libel, regardless of whether the allegations of cause are true or false and regardless of the actual motive behind the dismissal." See DeLuca v. Reader, 323 A.2d 309, 313 (Pa.Super. 1974).
Obviously, determining whether the instant statements are privileged turns on the existence of a collective bargaining agreement. However, the plaintiff was employed by "AHERF," which, based on the allegations in the plaintiff's complaint and all reasonable inferences to be drawn therefrom, was not a party to any collective bargaining agreement. Thus, the court will deny the defendants' motion to dismiss Count VI of the plaintiff's complaint.
To support their claims, the defendants have attempted to introduce extrinsic evidence that Lezotte was a member of a union and that her employment was governed by the collective bargaining agreement between the Pennsylvania Nurses' Association and "Allegheny University Hospitals East Falls." When deciding a motion to dismiss a court can consider extrinsic evidence and treat the motion as one for summary judgment as long as the opposing party is made aware of the judge's election to do so and is given a "reasonable opportunity" to present rebutting evidence. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). Given the apparently complicated nature of the issue of what entity employed Lezotte, the court declines to treat this motion as one for summary judgment.
ii. Plaintiff has alleged all elements of a claim for defamation
With respect to actions for defamation, it is the court's responsibility to determine if the challenged publications convey defamatory meaning. Thomas Merton Center v. Rockwell International Corp., 442 A.2d 213, 215-216 (Pa. 1981), cert. denied, 457 U.S. 1134 (1982). If not, the matter should not proceed to trial. Id. A communication is defamatory if it ascribes to another conduct, character or a condition that would adversely affect his or her fitness for the proper conduct of his or her lawful business, trade or profession. Id. at 216.
According to the plaintiff, the defendants alleged that unnamed coworkers and patients complained that the plaintiff "discussed sexual topics with patients and coworkers, called co-workers names in front of patients and was disorganized in providing patient care." Compl. ¶ 60. Furthermore, at her hearing, the defendants repeated these accusations and further accused Lezotte of patient and drug abuse. Compl. ¶ 78. These statements undoubtedly ascribe conduct to the plaintiff that would negatively impact her fitness for the profession of a nurse and, as a matter of law, are capable of conveying defamatory meaning.See Corabi v. Curtis Publishing Co., 273 A.2d 899, 907 (Pa. 1971) (news article was capable of defamatory meaning where it implicated the plaintiff in the commission of various criminal offenses and immoral conduct); Agriss v. Roadway Express, Inc., 483 A.2d 456, 462 (Pa.Super. 1984) (statements were capable of defamatory meaning where they accused the employee of dishonesty, a lack of integrity and untrustworthiness as well as the federal criminal offense of opening another's mail).
D. Negligent supervision (Count VII)
In Count VII, the plaintiff alleges a claim for negligent supervision against AHERF, Evans, Green, Pongan, and Yarrow. The defendant moves to dismiss this claim on the grounds that it is barred by the exclusivity provision of PWCA. I will deny the defendant's motion as to Count VII.
The Pennsylvania Supreme Court has held that an employee may sue his employer for negligence in failing to maintain a safe workplace if that negligence allows a co-worker to injure him for purely personal reasons:
While we recognize the principles of exclusivity [in the PWCA] upon which [defendant] bases this attack, this court has previously determined that the scope of such exclusivity does not preclude damage recoveries by an employee, based upon employer negligence in maintaining a safe workplace, if such negligence is associated with injuries inflicted by a co-worker for purely personal reasons.Kohler v. McCrory Stores, 615 A.2d 27, 30 (Pa. 1992), (citingDolan v. Linton's Lunch, 152 A.2d 887 (Pa. 1959)). The court further stated that "the spirit and intent of the [PWCA] is not violated by permitting an employee injured by a co-worker for purely personal reasons to maintain a negligence action against his employer for any associated negligence in maintaining a safe workplace." Kohler, 615 A.2d at 31. As such, Count VII survives the defendants' motion to dismiss.
E. Wrongful Termination (Count VIII)
Pennsylvania courts have held that "in order to assert a claim for wrongful discharge from employment which is cognizable under the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., an aggrieved party must utilize administrative remedies available through the Pennsylvania Human Relations Commission ("PHRC") before asserting a cause of action in court." Clay v. Advanced Computer Applications, Inc., 559 A.2d 917, 918 (Pa. 1989). Accordingly, Clay held that the PHRA preempts common law tort claims for wrongful discharge based upon sexual harassment and discrimination because the PHRA declares that this type of mistreatment is an "unlawful employment practice," 43 P.S. § 955(a), and provides a statutory remedy for the violation. Id.
Count VIII of the plaintiff's complaint alleges that defendants AHERF and Evans are liable "for the tort of Wrongful Discharge, in that [Lezotte's] discharge and firing on 01 October 1996 were not for just cause, but were in retaliation for her complaining of sexual assault and sexual harassment." Compl. ¶ 115. The plaintiff's claims are clearly within the anti-retaliation provision of the PHRA, and, accordingly her wrongful discharge claim is preempted. As such, the court will dismiss Count VIII in its entirety.
The PHRA expressly provides a claim for retaliation:
It shall be an unlawful employment practice . . .
(d) For any person, employer, employment agency or labor organization to discriminate in any manner against any individual because such individual has opposed any practice forbidden by this act, or because such individual has made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing under this act.43 P.S. § 955(d).
An appropriate order follows.
ORDER
AND NOW, this first day of May, 1998, upon consideration of the defendants' motion to dismiss Counts III-IX, the defendant Drew Henderson's motion to join in the motion to dismiss, the plaintiff's response thereto and the defendants' reply, IT IS HEREBY ORDERED as follows:(1) The defendant Drew Henderson's motion to join in the defendants' motion to dismiss is GRANTED;
(2) Counts III and VIII of the plaintiff's complaint are DISMISSED with prejudice and the plaintiff's motion for leave to amend Counts III and VIII is DENIED;
(3) The plaintiff's assault and battery claims against the defendant AHERF are DISMISSED but the court GRANTS the plaintiff leave to amend these claims within 30 days of the date of this order;
(4) The plaintiff withdraws her claim against AHERF under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 for retaliation based on complaints of race discrimination alleged in Count II of the complaint;
(5) The plaintiff withdraws Count IX of her complaint for breach of implied contract;
(6) The defendants' motion to dismiss the remaining counts of the plaintiff's complaint is DENIED.