F GE 90

1ST CASE of Levell printed in FULL format.

LISA KRUPINSKI v. CIRCUIT CITY STORES, INC., et. al.
CIVIL ACTION NO. 94-7536
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
1995 U.S. Dist. LEXIS 9369; 66 Empl. Pleac. Dec. (CCH)
P43,604
July 3, 1995, Decided
COUNSEL: [*1] For LISA KRUPINSKI aka LISA MCCABE, PLAINTIFF: ELLENB TH
AUGSBERGER, UPPER DARBY, PA.
For CIRCUIT CITY STORES, INC., DEFENDANT: EDWARD S. MAZUREK, MORGAN, LE IS &
BOCKIUS, PHILADELPHIA, PA. For ROBERT KELLY, DEF3NDANT: KENNETH D. KLEI
STEVENS & LEE, WAYNE, PA.
JUDGES: JUDGE MARJORIE O. RENDELL
OPINIONBY: MARJORIE O. RENDELL
OPINION: MEMORANDUM
Rendell, J.
July 3, 1995
Plaintiff Lisa Krupinski ("Plaintiff") filed "this suit on December 1 , 1994, I
alleging a violation of Title VII of the Civil Rights Act of 1964 and
intentional infliction of emotional distress. Defendant Robert Kelly (" elly")
moves to dismiss the complaint in its entirety. l?or the reasons set for h below,'
I will grant his motion in part and deny his motion in part ..
I. Factual Background
Plaintiff, an employee of Defendant Circuit City Stores, Inc., ("Cir uit
City") since 1991, was transferred to the Springfield, Pennsylvania, br ncb of
Circuit City in 1993, where she was supervised b:r the IIlead" sales asso iate,
Kelly. Kelly made explicit derogatory sexual remiirks to Plaintiff in fr nt of
other associates and the public. Plaintiff notif.ied her supervisors sev ral
times, but no corrective action was taken. As a [*2] result of this
harassment, Plaintiff was forced to take a mediciil leave of absence.
Shortly after her return, she tendered her resignation, but rescinde it whe
she was informed that Kelly had been transferred. Circuit City then ret liated
against Plaintiff by refusing her a promised prrnnotion. Plaintiff subse uently
requested and received a transfer to a different store.
in
his official capacity, and that in any event, he is not individually Ii
because Title VII does not contemplate individual liability.. He also ar
Kelly argues that he is not an "employer
ll
subject: to Title VII liabi
tha
because only sexual remarks, as opposed to unwan":ed physical contact, a
91.
1995 u. S. Dist. LEXIS 9369, *2; 66 Empl. Prac. Dec. (CCH)
alleged, Plaintiff has not stated a claim for intentional infliction 0 .
emotional distress.
II. Discussion
A. Title VII
1. Official Capacity
Kelly argues that this Court lack subject matter jurisdiction based n the
facts alleged, namely, that he is not a supervis,Jr as Plaintiff alleges and is
therefore not subject to liability under Title VII. In lighit of this "f ctual"
attack on jurisdiction, I am permitted to weigh the facts alleged in th
pleadings filed to date to determine the existen:e of federal jurisdicton.
[*3] See Mortensen v. First Fed. Save & Loan Assoc., 549 F.2d 884, 89 (3d
Cir. 1977). The threshold showing needed to withstand a motion to dismi s undE!r I
Rule 12(b)(1) upon a factual analysis is very l ~ ~ , see Kehr Packages, I c. v.
Fidelcor, Inc., 926 F.2d 1406,1409 (3d Cir.), cl:rt. denied" 501 U.S. 122,111
S. Ct. 2839, 115 L. Ed. 2d l007 (1991), and dismissals for lack of subj ct
matter jurisdiction are granted "grudgingly," Harrison v. Local 54, 518 F.2d
1276, 1283 (3d Cir. 1975), appeal dismissed and I:::ert. denied, 423 U.S. 042
(1976); see also Cardio-Medical Assocs. v. Croze:r-Chester Medical 721 F.2d
68, 75 (3d Cir. 1983) (cita1:ion omitted). Further, when the issue jec:t
matter jurisdiction is intertwined with factual cluestions that go to th merits
of the plaintiff's claim, the claim may only be dismissed for lack of s bject
matter jurisdiction when the claim is asserted s()lely in order to estab ish
federal jurisdiction or when the claim is wholly insubstantial. See Mar in V.
Uni ted Way, 829 F. 2d 445, 447 (3d Cir. 1987) (c:i :ation omi t1:ed). Plaint ff
nonetheless bears the burden of establishing tha: federal jurisdiction
See Berardi V. Swanson Memorial Lodge, 920 [*4] F.2d 198, 202 (3d Ci
(citation omitted).
A cursory review of Plaintiff's claim reveals that it was not brough simply
to obtain jurisdiction nor is it frivolous. In hc!r complaint, Plaintiff alleges i
that Kelly was her supervisor. Further, she subm:Lts an affidavit detail ng the
supervisory authority possessed by Kelly. For example, she avers that s e had t9
report to Kelly concerning any customer problems or questions, and that he
determined her employee incEmtives, which impactl!d her compEmsation.
Accordingly, I will not dismiss Plaintiff's clailn at this stage for lac of
subject matter jurisdiction.
2. Individual Liability
Title VII imposes liability upon "employers." However, the definitio of an
"employer" includes any "agents" of the employer. See @ 2000e(b). This nclusivEl
definition gives rise to the question whether by including "agents" wit in the
defini tion of "employer," Title VII impJses liab:Lli ty upon individuals n
addi tion to their employers. This question is n01: settled, and there ha been nq
definitive pronouncement on this issue by the Court of Appeals for the hird
Circuit. See generally Caplan V. Fellheimer, Eichen, Braverman & Kaskey 1995 W ~
251328 at * 2-3 [*5] (E.D. Pa. April 24, 199!;) (discUSSE!S split in ircuit
on this issue). Not surpriSingly, Kelly argues that Title VII does not
contemplate individual liability, where:ls Plaint:Lff argues that is does
I
S
in
Cir.
AGE 92.
1995 U.S. Dist. LEXIS 9369, *5; 66 Empl. Prac. Dec. (CCH) P43,6 4
I find more persuasive the reasonin9 underlying those decisions which have
denied imposing Title VII liability on individuals. See generally, e.g.,
V. City of Phila, 862 F. Supp. 1329 (E.D. Pa. 1994); Miller v. Maxwell's Int'l,
991 F:2d 583 (9th Cir. 1993), celt. denied, 114 S. Ct. 1049 (199 ). Whilel
Tltle VII dlrects that empl::>yers and their agents shall be held liable, it
exempts small business from liability, and limits damages available ag inst
larger businesses depending on the SiZE' (and thus presumably the resources) of I
the business. See 42 U.S.C. @ 1981a(b)(3). It is difficult to construe statute
which narrowly tai lors dist inctions reI ating to employer 1 iabi 1 i ty on t, e basis I
of size as nonetheless permitting unfettered individual liability simpl on the
basis of an inclusive definition.
The more logical reading of these provisions is that Title VII aims o emsur$
that the employer will be held responsible for an employee's acts [*6]
-, that
an employer will not be able to escape liability for the acts of one wh can
fairly be said to be acting as its agent. Thus, ritle VII to ent ench t:hJ
doctrine of respondeat superior liability rather than to include indivi uals as
independently liable under its terms. n1 As such, Kelly cannot be held
individually liable for his actions under Title 'JII, and I will dismiss thE!
claim against him in that ciipacity. Cf. Verde v. Philadelphia, 862 F.
pp.
1329, 1334-35 (E.D. Pa. 1994) (dismisses capacity suit becau
e Title
VII does not impose individual liability, but permits official capacity sui t) .
- - - - - - - - - - - - - - - - - -Footnotes- -- - - - - - - - - - - - - - -
nl This issue might have warranted closer if Kelly were lleged
to have played a key role in the business. Court:; that have permitted i di
liability have done so on the basis that the individual's role and stat s in
business was so great that she or he was found to be within the definiton of all
"employer" and was thus subject to Title VII liability. See, e.g., Pric V. '
Marshall Erdman & Assocs., Inc., 966 F.2d 320, 3:n (7th Cir., 1992) (indvidual
defendant was head of midwest division and one who fired plaintiff); Ha vey v.
Blake, 913 F.2d 226, 227 (5th Cir. 1990) (supervisor was "employer" und r
statute). However, this is not such a case.
.- - - - - - - - - - - - - - -
- - - - -End Footnotes
[*7]
B. Intentional Infliction of Emotional DistreBs
1. Legal Standard
In evaluating a motion to dismiss for failure to state a claim upon
relief can be granted under Fed.R.Civ.P. 12(b)(6), all allegations cont
the complaint must be taken as true, with all reasonable inferences dra
favor of the plaintiff. Resolution Trust Corp. v. Farmer, 836 F. Supp.
1128 (E.D. Pa. 1993); see also Leatherman V. TarJ:-ant County Narcotics
Intelligence & Coordination Unit, 122 L. Ed. 2d 113 S. Ct. 1160, 1
(1993). However, conclusory legal state:nents need not be accepted as tr
must determine whether plaintiffs may be entitled to relief under any r,
reading of the complaint, see Gilbert v. Feld, 7B8 F. Supp. 854, 858 (E
1992) (quoting Colburn V. Upper Darby Township, B38 F.2d 663, 665-66 (3.
granted
1988), and only grant dismissal if it appears "1:hat no relief could be
ons."
under any set of facts that could be proven cons:.stent with the allegat
d 195,
H.J. Inc. v. Northwest Bell Tel. Co., U.S. 249-50, 106 L. Ed.
AGE 93
1995 U.S. Dist. LEXIS 9369, *7; 66 Empl. Prac. Dec. (CCH) P43,6( 4
109 S. Ct. 2893 (1989) (citations omi ti:ed) .
2. Discussion
To state a claim for intentional infliction of emotional distress urder
Pennsylvania law, [*8] a plaintiff must allege that the defendant ecklessly
or intentionally engaged in conduct was extreme or outrageous and that
caused the plaintiff severe emotional distress. E.g., Williams v. Guzz rdi, 875
F.2d 46, 52 (3d Cir. 1989) (citation onlitted). Sexual harassment in ane of
itself generally does not satisfy the requirement that the acts be outrageous.
Andrews v. City of Phila., 395 F.2d 1469, 1487 (3d Cir. 1990). Moreover, conduct
undertaken in an employment situation rises to the level of .
outrageousness necessary in order to state a claim under this tort. E.. , Cox v.
Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988) (citation omitted). In
order to for sexual harassment in the workplace to rise to the level of
intentional infliction of emotional distress, Pennsylvania courts have
that the harassment be accompanied by work-related retaliation against he
harassed emploYI:e. See Cox, 861 F. 2d at 395.
Plaintiff's allegations are somewhat different from those which are sually
the basis of a complaint for sexual harassment. Plaintiff alleges that elly
made offensive remarks rather than advances, but beyond those remarks, here are
no allegations [*9] of further conduct, such 3.S retaliatory job trea
ment or
threats of such treatment. There is no question that the Plaintiff was
ubj ect.ed
to crude, highly offensive, derogatory remarks of a sexual nature, and,
as a
result, found her work environment intolerable. liowever, her claim lack
any
P GE 94
1995 u. S.. Dist. LEXIS 9369, *10; 66 Empl. Prac. Dec. (CCH) P43, 6
4
Concerning the claim against Robert Kelly for intentional infliction
of
emotional the Motion is GRANTED and Count I I is DISMISSED as
o RobertJ
Kelly. Plaintiff is granted leave to amend her complaint to state a cIa
m for
intentional infliction of emotional distress fifteen days of the
date of
this Order, is she is able to do so consistent with Fed.R.Civ.P. 11.
As to the remaining [*11]
aspects of the Motion, the Hotion is DE. lED.
BY THE COURT:
MARJORIE O. RENDELL, J.