Opinion
Civil Action No. 03-CV-02186
April 7, 2004
OPINION
This matter is before the court on Defendants', Kazi Foods of New Jersey, Inc. t/d/b/a Kentucky Fried Chicken a/k/a KFC; KFC Corporation and Yum! Brands, Inc. f/k/a Tricon Global Restaurants, Inc., Motion for Summary Judgment, which motion was filed February 27, 2004. For the reasons expressed below, we conclude that all defendants are entitled to judgment as a matter of law on Count V of plaintiff's Complaint. Moreover, we find that defendant KFC Corporation and defendant Yum! Brands, Inc. are entitled to judgment as a matter of law on Counts I and II of the Complaint. In all other respects, we find that defendants are not entitled to summary judgment. Therefore, we grant in part and deny in part defendants' motion.
PROCEDURAL BACKGROUND
This civil action arises from plaintiff's employment by defendant Kazi Foods of New Jersey, Inc. ("Kazi"). Defendant Kazi is a franchisee of defendant KFC Corporation ("KFC". Defendant Yum! Brands, Inc. ("Yum!") is the parent corporation to KFC.
On April 4, 2003 plaintiff filed a Complaint against defendants alleging: (1) a hosfile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; (2) retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; (3) wrongful discharge; (4) intentional infliction of emotional distress; and (5) negligent supervision.
Plaintiff categorized Count I as a claim for sexual harassment. For the sake of clarity going forward in this case, we note that Count I is specifically a claim of hosfile work environment.
Plaintiff categorized Count II as a claim for gender discrimination. For the sake of clarity going forward in this case, we note that Count II is specifically a claim of retaliation.
Plaintiff categorized Count V as a claim for negligence. For the sake of clarity going forward in this case, we note that Count V is specifically a claim for negligent supervision. For a more detailed discussion of this determination, see infra, note 9.
By Order dated October 22, 2003 the undersigned granted in part and denied in part Defendant's, Kazi Foods of New Jersey, Inc. t/d/b/a Kentucky Fried Chicken, a/k/a KFC, KFC Corporation, Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), which motion was filed on June 5, 2003. In that Order, the court dismissed Count III of plaintiff's Complaint.
On February 27, 2004 defendants moved for summary judgment on Counts I, II, IV and V of plaintiff's Complaint. Therein, defendants raise the following arguments: 1) plaintiff cannot establish liability for employment discrimination against defendant KFC or defendant Yum! because there is no evidence that they ever employed plaintiff; 2) plaintiff cannot establish a prima facie case of sexual harassment or gender discrimination; 3) respondeat superior does not apply in this case; 4) plaintiff cannot demonstrate a prima facie case of negligence; 5) plaintiff cannot demonstrate a prima facie case of intentional infliction of emotional distress; and 6) plaintiff is not entitled to punitive damages.
For the reasons which follow, we now grant in part and deny in part defendants' motion for summary judgment.
STANDARD FOR SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure provides that judgment shall be rendered where it is shown that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). Where a moving defendant does not bear the burden of persuasion at trial, he need only point out that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 275 (1986).
CONCLUSIONS OF LAW
It is not necessary to make any findings of fact in deciding this matter. Where we do grant summary judgment in this Opinion, our enunciated reasons are based purely on questions of law unrelated to any findings of fact. The remainder of this Opinion declines to grant summary judgment, citing disputes on material issues of fact.
Applying the summary judgment standard to the issues presented by the parties, we find as follows:
1. Defendant KFC and defendant Yum! are entitled to summary judgment as a matter of law on Counts I and II because plaintiff has made no allegations and presented no evidence upon which a reasonable jury could find that defendant KFC or defendant Yum! was plaintiff's employer.
2. Disputes on material issues of fact exist concerning the circumstances surrounding the incidents of sexual harassment and retaliation allegedly suffered by plaintiff from which a reasonable jury could find a hosfile work environment, retaliation, intentional infliction of emotional distress, and punitive damages.
3. Plaintiff's claim for negligent supervision stated in Count V of the Complaint is preempted by the Pennsylvania Human Relations Act, Act of December 20, 1991, P.L. 414, No. 51, §§ 1-11, as amended, 43 P.S. §§ 951-963 ("PHRA").
DISCUSSION
I. Title VII Liability of Defendant KFC and Defendant Yum!
Initially, defendants argue that plaintiff cannot establish liability in Counts I or II of the Complaint against defendant KFC or defendant Yum! because they are not "employers" under Title VII. For the reasons explained below, we agree and enter judgment in favor of defendant KFC and defendant Yum! on Counts I and II of the Complaint.
Title VII makes it unlawful for an employer to discriminate against an employee based on the "individual's race, color, religion, sex, or national origin". 42 U.S.C. § 2000e-2. Because Title VII regulates the relationship between employers and employees, "the relevant question. . . is whether the defendant is the plaintiff's employer under the statute." Doe v. William Shapiro, Esquire, P.C., 852 F. Supp. 1246, 1253 (E.D. Pa. 1994); accord Fullman v. Philadelphia International Airport,
49 F. Supp.2d 434, 440-441 (E.D. Pa. 1999). Thus, "Title VII authorizes a cause of action only against employers, employment agencies, labor organizations, and training programs. . . ." Fullman, 49 F. Supp.2d at 441.
In her Complaint, plaintiff alleges that defendants are "employers" as defined by Title VII. However, the Complaint is bereft of any allegation that defendant KFC or defendant Yum! were her employers, as required for plaintiff to be a covered "employee" under Title VII. See 42 U.S.C. § 2000e(f). Further, plaintiff has failed to come forth with any evidence in opposition to defendants' motion for summary judgment which tends to establish that defendant KFC and/or defendant Yum! were her employers at any time.
In opposition to defendants' motion, plaintiff urges the court to find a genuine issue of material fact as to whether defendant KFC and defendant Yum! were plaintiff's employers on the basis that defendants have not presented sufficient evidence that they were not plaintiff's employers or part of an integrated enterprise.
As plaintiff in this matter, it is solely her burden to establish a prima facie case against defendants. There is no basis upon which to shift to defendants plaintiff's burden of proving the most essential element of her Title VII claims — employment by defendants.
Defendants preemptively argue that plaintiff has presented no evidence that defendant KFC and defendant Yum! were part of an integrated enterprise with Kazi by which such defendants could be treated as plaintiff's employers. Where distinct corporate entities are found to be "so interrelated and integrated in their activities, labor relations, and management", they should be treated as a single employer for Title VII purposes. Fantazzi v. Temple University Hospital, Inc., No. 00-CV-4175, 2002 U.S. Dist. LEXIS 16269, *8 (E.D. Pa. August 22, 2002) (citingMarzano v. Computer Science Corporations Inc., 91 F.3d 497, 513-514 (3d Cir. 1996)). To make a determination that an "integrated enterprise" exists, a court should consider: 1) the interrelation of operations; 2) common management, directors, and boards; 3) centralized control of labor relations; and 4) common ownership and financial control. Id. (citingKemether v. Pennsylvania Interscholastic Athletic Association, 15 F. Supp.2d 740, 749 n. 5 (E.D. Pa. 1998)).
Plaintiff has made no allegation that defendants are an integrated enterprise. Moreover, plaintiff has presented no evidence in support of even one factor establishing an integrated enterprise in the instant case. Therefore, defendant KFC and defendant Yum! are entitled to summary judgment on any implied integrated entity theory.
Because plaintiff failed to present any evidence that she was employed by defendant KFC or defendant Yum!, we find that there is no genuine issue of material fact preventing the entry of summary judgment on this issue. Moreover, we find that defendant KFC and defendant Yum! are entitled to judgment as a matter of law on plaintiff's Title VII claims found in Counts I and II because plaintiff has made no showing of her employment by those entities as required to succeed on a Title VII cause of action.
II. Count I — Hosfile Work Environment
In their motion, defendants challenge Count I of plaintiff's Complaint by arguing that plaintiff cannot establish a prima facie case of hosfile work environment against any defendant. For the reasons set forth below, we deny defendants' motion in this regard because we find disputes on material issues of fact precluding the entry of summary judgment.
An employer may violate Title VII by creating an intimidating, hosfile, or offensive working environment. Weston v. Pennsylvania, 251 F.3d 420, 425-426 (3d Cir. 2001). In a sexual harassment case, the plaintiff must prove a hosfile working environment by demonstrating harassment so severe or pervasive that it alters the conditions of plaintiff's employment and creates an abusive environment. Id. at 426. To succeed on a hosfile working environment claim, a plaintiff must prove the following five factors:
(1) the employee suffered intentional discrimination because of [her] sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (citations omitted).
In challenging plaintiff's hosfile work environment claim, defendants first argue that plaintiff cannot establish any pervasive or regular gender-based discrimination suffered by plaintiff. Specifically, defendants argue that any discrimination suffered by plaintiff on the basis of her gender was limited to a two-week period in February 2002. However, we find disputes on material issues of fact as to the circumstances surrounding the specific incidents of discrimination alleged. These disputes include: (1) whether the incidents of alleged harassment occurred; (2) when such incidents occurred; (3) whether such incidents were related to plaintiff's gender; and (4) whether such incidents were pervasive or regular.
Next, defendants argue that plaintiff cannot establish that the alleged discrimination detrimentally affected her. Again, we find disputes concerning material issues of fact as to the circumstances surrounding the specific incidents of discrimination alleged from which a jury may find that plaintiff was detrimentally affected. These disputes include: (1) whether the incidents of alleged harassment occurred; (2) when such incidents occurred; (3) whether such incidents were related to plaintiff's gender; and (4) whether plaintiff suffered any injuries as a result of such harassment.
Defendants next argue that plaintiff has failed to present sufficient evidence of respondeat superior liability — the fifth element of a hosfile work environment claim. Because we find disputes on material issues of fact concerning the circumstances surrounding the termination of plaintiff's employment and surrounding the reports she allegedly made of sexual harassment, we are unable to enter summary judgment on this issue. These disputes include: (1) whether the incidents of alleged harassment occurred; (2) when such incidents occurred; (3) who committed such harassment;(4) whether plaintiff reported such harassment; (5) when plaintiff reported such harassment; and (6) what steps defendants took in response to plaintiff's reports.
As explained above, numerous issues of material fact exist from which a reasonable jury could find a hosfile work environment. Thus, we decline to enter judgment in defendants' favor on Count I at this time. III. Count II — Retaliation
In conjunction with their challenge to Count I of plaintiff's Complaint, defendants also challenge Count II. In doing so, defendants rely solely on their argument concerning the hosfile work environment claim. Count II of the Complaint, however, alleges retaliation in violation of Title VII rather than a hosfile work environment.
To succeed on a Title VII retaliation claim, plaintiff must prove that: "(1) she engaged in a protected activity; (2) the employer took an adverse action against her; and (3) there is a causal link between the activity and the adverse action." Sherrod v. Philadelphia Gas Works, 57 Fed. Appx. 68, 77 (3d Cir. 2003) (citing Charlton v. Paramus Board of Education, 25 F.3d 194, 201 (3d Cir. 1994)).
As explained above, we find issues of material fact concerning whether defendant Kazi took any adverse employment action against plaintiff. Moreover, defendants have presented no challenge to the remaining elements of plaintiff's retaliation claim. Thus, we deny defendants' motion for summary judgment on Count II of the Complaint.
IV. Count IV — Intentional Infliction of Emotional Distress
Defendants challenge Count IV of plaintiff's Complaint which alleges a pendent state claim of intentional infliction of emotional distress. Defendants argue that: 1) the common law cause of action for intentional infliction of emotional distress in an employment context is preempted by the Pennsylvania Workers' Compensation Act, Act of June 2, 1915, P.L. 736, art. I, § 101, as amended, 77 P.S. §§ 1-2626 ("PWCA"); and 2) plaintiff cannot establish the extreme and outrageous conduct necessary to prove such a claim. For the reasons stated below, we disagree with defendants and deny summary judgment concerning Count IV.
By Order dated October 22, 2003 the undersigned determined that plaintiff's claim for intentional infliction of emotional distress is not preempted by the PWCA. For the reasons stated in that Order, we again reject defendants' argument that plaintiff's intentional infliction of emotional distress claim is preempted by the PWCA and not covered by the personal animus exception.
The exclusivity provision of the PWCA provides as follows:
The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.77 P.S. § 481(a). However, in our October 22, 2003 Order we considered the personal animus exception to the PWCA, which does not preempt claims 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); accord Kohler v. McCrory Stores, 531 Pa. 130, 137, 615 A.2d 27, 31 (1992). Because we found that the acts of sexual harassment alleged by plaintiff were personal in nature and not part of the proper employer/employee relationship, we held that defendants' actions in the instant case fall within the personal animus exception and are, therefore, not preempted by the PWCA.
Next, we find that disputes on material issues of fact exist from which a reasonable jury could find the extreme and outrageous conduct needed to succeed on an intentional infliction of emotional distress claim. Those disputes include: (1) whether the incidents of alleged harassment occurred; (2) when such incidents occurred; (3) whether such incidents were related to plaintiff's gender; (4) whether plaintiff suffered any injuries as a result of such harassment; and (5) whether defendants' conduct was extreme and outrageous.
To prove a claim for intentional infliction of emotional distress under Pennsylvania law, a plaintiff must prove that a defendant's "conduct was: 1) extreme and outrageous; 2) intentional or reckless; and 3) caused severe emotional distress." Hitchens v. County of Montgomery, No. 00-CV-4282, 2002 WL 253939, *10 (E.D. Pa. February 20, 2002). It is "extremely rare" for conduct in the employment context to amount to extreme and outrageous conduct. Andrews v. City of Philadelphia, 895 F.2d 1469 1487 (3d Cir. 1990) (quoting Cox v. Keystone Carbon, 861 F.2d 390, 395 (3d Cir. 1988)). "As a general rule, sexual harassment alone does not rise to the level or outrageousness necessary to make out a cause of action for intentional infliction of emotional distress. . . . The extra factor that is generally required is retaliation. . . ." Id. (citing Bowersox v. P.H. Glatfelter Company, 677 F. Supp. 307, 311 (M.D. Pa. 1988)).
Accepting the facts as presented by plaintiff as true, a reasonable jury could find the retaliation needed for plaintiff to demonstrate extreme and outrageous conduct in this context. These facts include: (1) whether the incidents of alleged harassment occurred; (2) when such incidents occurred; (3) whether such incidents were related to plaintiff's gender; (4) whether plaintiff suffered any injuries as a result of such harassment; and (5) whether defendants' conduct was extreme and outrageous. Thus, we find disputes on material issues of fact precluding the entry of judgment against plaintiff on her intentional infliction of emotional distress claim at this time. Therefore, we deny defendants' motion concerning Count IV.
V. Count V — Negligence
Defendants argue entitlement to summary judgment on plaintiff's pendent state cause of action for negligence stated in Count V of the Complaint. Specifically, defendants argue that: 1) plaintiff cannot prove a prima facie case of negligence; 2) such claim is preempted by the PWCA; and 3) such claim is preempted by the PHRA. For the reasons explained below, we find that plaintiff's negligence claim is preempted by the PHRA. Thus, we enter summary judgment in defendants favor on Count V of plaintiff's Complaint.
Defendants first raised the argument that plaintiff's negligence claim is preempted by the PHRA in its Second Supplement to Defendants', Kazi Foods of New Jersey, Inc. t/d/b/a Kentucky Fried Chicken, a/k/a KFC and KFC Corporation; and Yum Brands, Inc., f/k/a Tricon Global Restaurants, Inc., Brief in Support of Motion for Summary Judgment, which supplement was filed on March 31, 2004.
Initially, we note that defendants' "supplement" is actually a reply brief, raising arguments not previously made in its motion. Moreover, defendants filed such reply brief without the leave of court required by Rule 7.1 of the Rules of Civil Procedure of the United States District Court for the Eastern District of Pennsylvania.
Because defendants' reply brief raises an issue which this court had already researched and considered independently of defendants' reply brief, however, the court in its discretion has nonetheless considered defendants' reply brief.
Plaintiff's negligence claim is more precisely a claim for negligent supervision because essentially it alleges essentially defendants' failure to properly train its employees on sexual harassment and failure to properly investigate plaintiff's allegations of harassment. As such, it is preempted by the PHRA.
United States District Judge Franklin S. Van Antwerpen considered a nearly identical negligence count in McGovern v. Jack D's, Inc., No. 03-CV-5547, 2004 U.S. Dist. LEXIS 1985, *17-18 (E.D. Pa. February 3, 2004). That Complaint was drafted by plaintiff's counsel in the instant case. Count V of the McGovern Complaint contained no material differences from Count V in the present Complaint.
In considering defendants' motion to dismiss in McGovern, Judge Van Antwerpen determined that Count V was specifically a claim for negligent supervision "because we understand training of employees and investigating employee misconduct to be responsibilities commonly associated with the supervision of employees." McGovern v. Jack D's, Inc., No. 03-CV-5547, 2004 U.S. Dist. LEXIS 4326, *5 (E.D. Pa. February 25, 2004). We agree with Judge Van Antwerpen's reasoning in McGovern. Therefore, we will treat Count V of plaintiff's Complaint as a claim for negligent supervision.
In McGovern v. Jack D's, Inc., No. 03-CV-5547, 2004 U.S. Dist. LEXIS 1985, *22 (E.D. Pa. February 3, 2004), and McGovern v. Jack D's, Inc., No. 03-CV-5547, 2004 U.S. Dist. LEXIS 4326, *5-6 (E.D. Pa. February 25, 2004), United States District Judge Franklin S. Van Antwerpen recently addressed this issue in a sexual harassment context. Judge Van Antwerpen reasoned that:
"[W]here 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 1985 at *22. In the instant case, the PHRA does provide a remedy for sexual harassment of employees.McGovern, 2004 U.S. Dist. LEXIS 4326 at *5-6.
Judge Van Antwerpen ultimately determined that a negligent supervision claim without more is preempted by the PHRA. McGovern, 2004 U.S. Dist. LEXIS 1985 at *18-22 (following Fantazzi v. Temple University Hospital, Inc. , No. 00-CV-4175, 2002 U.S. Dist. LEXIS 16269, *5-6 (E.D. Pa. August 22, 2002); Murray v. Commercial Union Insurance Company , 782 F.2d 432, 437 (3d Cir. 1986); Snead v. Hygrade Food Products Associates ,
No. 98-CV-2657, 1998 U.S. Dist. LEXIS 20296 (E.D. Pa. December 28, 1998); and Coney v. Pepsi Cola Bottling Company , No. 97-CV-2419, 1997 U.S. Dist. LEXIS 7722 (E.D. Pa. May 28, 1997)).
Because Count V of plaintiff's Complaint raises allegations of negligent supervision based solely on the facts giving rise to plaintiff's sexual harassment claims, we find that plaintiff's negligence claim is preempted by the PHRA. Therefore, we grant defendants' motion on this issue and enter judgment in their favor on Count V of plaintiff's Complaint.
VI. Punitive Damages
Plaintiff seeks punitive damages in every count of the Complaint. Defendants ask this court to dismiss such demands because plaintiff cannot demonstrate the outrageousness necessary to sustain such a demand. For the reasons explained below, we disagree and deny defendants' motion for summary judgment in this regard.
Under Title VII, a successful plaintiff is entitled to punitive damages upon proof that "an employer acted with `malice or reckless indifference to the federally protected rights of an individual.'" Hawk v. Americold Logistics, LLC, No. 02-CV-3528, 2003 U.S. Dist. LEXIS 3445, *32 (E.D. Pa. March 6, 2003) (quoting Kolstad v. American Dental Association, 527 U.S. 526, 536, 119 S.Ct. 2118, 2124-2125, 144 L.Ed.2d 494, 505-506 (1999)). Pennsylvania law permits punitive damages upon a showing of "conduct which is malicious, wanton, reckless, willful, or oppressive."Mullen v. Topper's Salon Health Spa, Inc., 99 F. Supp.2d 553, 557 (E.D. Pa. 2000) (quoting Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747-748 (1984)) (internal citations omitted).
We find disputes on issues of material fact as to whether the conduct complained of constitutes the reckless conduct required to justify plaintiff's claim for punitive damages on either her federal or state law claims. These disputes include: (1) whether the incidents of alleged harassment occurred; (2) when such incidents occurred; (3) whether such incidents were related to plaintiff's gender; (4) whether plaintiff reported such harassment to defendants; and (5) whether defendants' conduct was reckless. Therefore, we deny defendants' motion in this regard.
CONCLUSION
For all the foregoing reasons, we grant in part and deny in part defendants' motion for summary judgment. We enter judgment in favor of all defendants on Count V of plaintiff's Complaint. We enter judgment in favor of defendants KFC and Yum! on Counts I and II of the Complaint. In all other respects, we deny defendants' motion.