JOSEPH F. LEESON, JR., District Judge.
Plaintiff Sasha Hernandez initiated this action against her former employer, Defendant EHC Associates, Inc. ("EHC"), under Title VII of the Civil Rights Act, and against several individual employees of EHC under the Pennsylvania Human Resources Act ("PHRA"), 43 P.S. §§ 951-963 for discrimination, retaliation, and aiding and abetting. Defendant Jorge Intriago has filed a Motion for Judgment on the Pleadings, or in the Alternative, Motion to Dismiss. Hernandez has since agreed to withdraw her discrimination and aiding and abetting claims, leaving only the retaliation claim under the PHRA § 955(d). For the reasons set forth below, the retaliation claim is dismissed without prejudice.
Hernandez alleges that she was subjected to sexual harassment by her coworkers. The Complaint alleges as follows: From June 2015 until March 17, 2016,
On July 18, 2015, Hernandez was threatened with physical and sexual assault by another coworker. Compl. ¶ 46. Hernandez was so upset that she "had to remove herself from the situation." Id. ¶ 49. Approximately five minutes later, Intriago summoned Hernandez and told her, "`you won't have to shower today,' [because] `you're going home to have sex and you're already sweating.'" Id. ¶¶ 46-50.
The Complaint alleges several other instances of harassing conduct by Hernandez's coworkers.
Hernandez reported the harassment sometime in July 2015
Hernandez filed the instant action on November 22, 2017, alleging the following claims against the individually named Defendants: (1) Unlawful Discrimination under the PHRA § 955(a); (2) Retaliation under the PHRA § 955(d); and (3) Aiding and Abetting under the PHRA § 955(e).
On July 30, 2018, Intriago filed a Motion for Judgment on the Pleadings, or in the Alternative, Motion to Dismiss, seeking dismissal of all claims against him for failure to state a claim. See Mot. and Brief, ECF No. 26. In response, Hernandez has agreed to withdraw her third and fifth causes of action, leaving only the retaliation claim under the PHRA § 955(d) in the fourth count. See Resp. 2, n.1, ECF No. 28.
"A motion for judgment on the pleadings based on a theory that the plaintiff failed to state a claim is reviewed under the same standards that apply to a motion to dismiss under Rule 12(b)(6)." Szczurek v. Prof'l Mgmt., 627 F. App'x 57, 60 (3d Cir. 2015) (citing Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010)). "`The only notable difference between these two standards is that the court in a motion for judgment on the pleadings reviews not only the complaint but also the answer and written instruments attached to the pleadings.'" DeJesus v. Wehrman, No. 5:16-cv-04745, 2017 U.S. Dist. LEXIS 160233, at *10 (E.D. Pa. Sep. 27, 2017) (quoting Foreman v. Lowe, No. 3:CV-06-0580, 2007 U.S. Dist. LEXIS 96962, at *4 (M.D. Pa. Mar. 30, 2007)).
In rendering a decision on a motion to dismiss or for judgment on the pleadings, this Court must "accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). Only if "the `[f]actual allegations . . . raise a right to relief above the speculative level'" has the plaintiff stated a plausible claim. Id. 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 540, 555 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. (explaining that determining "whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense"). The defendant bears the burden of demonstrating that a plaintiff has failed to state a claim upon which relief can be granted. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
Intriago asserts, first, that the PHRA claims should be dismissed because he did not hold a supervisory position over Hernandez, and that a § 955(d) claim is only proper against the employer. However, while the discrimination provision of § 955(a) states that it only covers "employers," the retaliation provision of § 955(d) explicitly states that it is unlawful "for any person" to engage in the conduct mentioned thereafter. Compare 43 P.S. § 955(a), with 43 P.S. § 955(d) (emphasis added).
Next, Intriago contends that the Complaint makes only one allegation of harassment specific to Intriago, which he argues is not sufficient to constitute severe or pervasive treatment. However, severe and pervasive conduct is only a requirement of a discrimination claim, not a retaliation claim. See Jones v. SEPTA, 796 F.3d 323, 327-30 (3d Cir. 2015) (explaining that discrimination and sexual harassment claims require evidence that the harassment was severe and pervasive, but including no such element as part of a retaliation claim under the PHRA). Hernandez's failure to allege conduct that is severe and pervasive is therefore not fatal to her retaliation claim.
Because Intriago asserts that the Complaint fails to state a claim under § 955(d), this Court also considers whether the allegations are sufficient to show each of the required elements of a retaliation claim. In order to establish a prima facie case of retaliation under the PHRA,
Hernandez's protected activity took place when she first reported the harassment to Hartman, EHC's President, in July 2015.
Although the Complaint alleges that other coworkers made harassing comments in front of Intriago, there are no other specific allegations in the Complaint regarding Intriago.
Consequently, the retaliation claim, as well as the remaining claims against Intriago that Hernandez has agreed to withdraw, are dismissed. Because there are unresolved factual questions, the Motion to Dismiss is granted and the Motion for Judgment on the Pleadings is denied. Hernandez is granted leave to file an amended complaint to attempt to cure the deficiencies in the retaliation claim.
For the reasons stated herein, all claims against Intriago are dismissed. The PHRA discrimination claim under § 955(a) and the aiding and abetting claim under the PHRA § 955(e) are dismissed upon the agreement of the parties. The retaliation claim under the PHRA § 955(d) is dismissed because there are insufficient factual allegations of retaliatory activity after Hernandez's protected activity. Due to the insufficiency of the allegations, this Court is unable to determine whether an amendment would be futile and therefore grants leave to amend. Hernandez is, once again, advised that if she decides to file an amended complaint to double check the dates of all alleged incidents and to make any necessary corrections.
A separate order follows.
To the extent that Intriago's alleged harassment occurred in July 2015, and Marquez-Pruneda's allegedly occurred in July 2016, both Opinions adopted the dates most favorable to Hernandez.
On June 19, 2018, this Court dismissed all claims against Defendant Marquez-Pruneda. See ECF Nos. 22-23. Although Hernandez was granted leave to file an amended complaint, no such amendment was filed.