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Home My WebLink About02-6005 MARY A. FANUCCI, BRYCE H. BROWN, AUDREY A. HANNA, and CARL A. WINFIELD, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 6.:2 - loCOS e~~L ~~ CIVIL ACTION - LAW JURY TRIAL DEMANDED WEST SHORE CHAMBER OF COMMERCE Defendant NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE LA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800/990-9108 NOTICE Le Hanna demanded a ousted en la corti. Si ousted quire defenders de estas demandas expuestas en las paginas sugnuientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE EST A DEMANDA A UN ABOGADO IMMEDIA TEMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEPFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERlGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 800/990-9108 I' MARY A. FANUCCI, BRYCE H. BROWN, AUDREY A. HANNA, and CARL A. WINFIELD, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. Oa.... - & ?Jo5 WEST SHORE CHAMBER OF COMMERCE Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff Mary A. Fanucci is an adult resident of Camp Hill, Cumberland County, Pennsylvania, and at all relevant times an employee of Defendant West Shore Chamber of Commerce. 2. Plaintiff Bryce H. Brown is an adult resident of Harrisburg, Dauphin County, Pennsylvania, and at all relevant times an employee of Defendant West Shore Chamber of Commerce. 3. Plaintiff Audrey A. Hanna is an adult resident of Mechanicsburg, Cumberland County, Pennsylvania, and at all relevant times an employee of Defendant West Shore Chamber of Commerce. 4. Plaintiff Carl A. Winfield is an adult resident of Mechanicsburg, Cumberland County, Pennsylvania, and at all relevant times an employee of Defendant West Shore Chamber of Commerce. 5. Defendant West Shore Chamber of Commerce is a corporation created under the laws of the Commonwealth of Pennsylvania which conducts business and performs its activities III Cumberland County, Pennsylvania, and which at all relevant times employed Plaintiffs Brown, Fanucci, Hanna, and Winfield. 6. The Defendant West Shore Chamber of Commerce is a corporation employing a sufficient number of employees at the time of Plaintiffs' discharge to invoke the jurisdictional and remedies contained within the Pennsylvania Human Relations Act. 7. On January 10, 2000, Carl Winfield was hired by West Shore Chamber of Commerce as a membership recruiter, and at all times performed his work properly, and in accordance with his employer's expectations. 8. In April 2002, West Shore Chamber of Commerce hired two new staff persons in their early twenties, Amy Dirle and Marisa Loffredo. 9. The Chamber hired Marisa Loffredo to replace Erin Aumen, the former public relations director who left the Chamber in February 2001. 10. Ms. Aumen left because she found the work environment at the Chamber to be hostile and uncomfortable. 11. At that time, Carl Winfield was sixty-six (66) years of age. 12. Mary Fanucci was hired by West Shore Chamber of Commerce in September of 1989 as an administrative services employee, and from that time forward performed her work properly, meeting the expectations of her employer, West Shore Chamber of Commerce. 13. On April 19, 2001, the Defendant's executive director, Edward Messner, asked Ms. Fanucci when she was going to retire. 14. Ms. Fanucci replied that she had no plans to retire because she enjoyed her job. 15. Ms. Fanucci asked Mr. Messner ifhe wanted her to retire, and he responded, "I'll let you know Monday." He never spoke with her on Monday. 25 1 877. l\JMM\RT 2 16. After this conversation, Ms. Fanucci noticed that a newly hired employee, Amy Dirle, in her early twenties, began to assume some of Ms. Fanucci's duties. 17. Ms. Dir1e was hired around April 1, 2001. 18. At that time, there was not an open position available for Ms. Dirle and none was created. 19. On May 3, 2001, Mr. Messner called Ms. Fanucci into his office and told her that she seemed unhappy with her job. Ms. Fanucci denied this. 20. Mr. Messner then told her that she had quite a bit of sick leave accumulated, and that he would like her to take a leave of absence until August. 21. Mr. Messner told Ms. Fanucci that she could spend her time volunteering or playing with her granddaughter. 22. Ms. Fanucci asked if she could have her job back when the leave ended, and Mr. Messner indicated that he could not guarantee that. 23. Ms. Fanucci refused the offer of a leave of absence. 24. At this time, Ms. Fanucci was sixty-four (64) years old. 25. Plaintiff Audrey Hanna was hired by Defendant West Shore Chamber of Commerce as project coordinator on October 5, 1998. At all relevant times she properly performed her job and met the expectations of her employer West Shore Chamber of Commerce. 26. Soon after Amy Dirle, a new employee in her twenties, was hired in April of 2001, she began to assume Ms. Hanna's duties. 27. At that time Ms. Hanna was fifty-three (53) years old. 28. Plaintiff Bryce Brown was hired in May of 1995 by Defendant West Shore Chamber of Commerce as a membership recruiter. 25 1877. l\JMMIRT 3 I!, I[ 29. At all relevant times Mr. Brown properly performed his job and met all expectations of Defendant West Shore Chamber of Commerce. 30. In May of2001, Mr. Brown was eighty-one (81) years of age. 31. In early May of 2001, the Defendant's executive director, Mr. Messner, called Mr. Brown into the Chamber of Commerce conference room and told him that the Board of Directors had pointed out that Mr. Brown had a very negative attitude and that it was to cease. 32. Mr. Brown responded that if this were true, he would amend his attitude. 33. Mr. Brown subsequently made an appointment to speak with Mr. Robb Keith, Chairman of the Board of Directors of the West Shore Chamber of Commerce, to discuss this, and Mr. Keith told him that he had no clue as to what was meant about a "negative attitude," and in fact Mr. Brown was one of the most upbeat people that he knew. 34. When Mr. Messner discovered that Mr. Brown had contacted Mr. Keith, he became visibly upset and informed Mr. Brown that he had no right to contact Mr. Keith. 35. Both Mr. Brown and Mr. Winfield, while acting as recruiters for the West Shore Chamber of Commerce, signed up many new members and received praise from their supervisors and from the Board of Directors of the West Shore Chamber of Commerce about their good work. 36. With the promotion of Karen Christie to Executive Vice President in 1999, the office environment became increasingly less friendly and hostile. 37. Karen Christie and Ed Messner had developed an increasingly personal relationship. They would leave together, on a daily basis, for long lunches up to three hours and for other long breaks without leaving forwarding telephone numbers or a location where they could be reached. 251S77.1IlMM\RT 4 I:' I , :! 38. There was occasional drinking during office hours and at times Edward Messner or Karen Christie would dismiss the staff early. Empty bottles of beer, wine, and liquor were in the conference room the next day. 39. Karen and Ed's relationship was increasingly personal rather than professional, and they acted as if they were romantically involved. 40. If any of the Plaintiffs complained about this, Mr. Messner would not talk to him or her for weeks at a time. 41. Karen Christie began to ignore long-standing Chamber policies and appeals to the Chamber's executive director, Edward Messner, were to no avail. 42. The relationship between Messner and Christie resulted in the failure of the office to function properly, and deprived staff of the ability to perform their jobs as they wished. 43. Edward Messner summarily dismissed Plaintiffs Carl Winfield, Mary Fanucci, Audrey Hanna, and Bryce Brown on or about May 14,2001, without explanation. 44. Jamie Lombardo, employed by the West Shore Chamber of Commerce, was a C.P.A. who quit two weeks before Plaintiffs were discharged. Ms. Lombardo also criticized Messner and Christie's behavior, and believed that she would be discharged if she did not first resIgn. 45. The functions of all of the dismissed Plaintiffs were assumed by younger employees. 46. The functions which the dismissed Plaintiffs performed were all necessary and ongoing at the time of their discharge. 25 I 877. I IlMM\RT 5 47. All Plaintiffs filed timely Complaints with the Pennsylvania Human Relations Commission alleging that their discharge was in violation of the Pennsylvania Human Relations Act. 48. The Human Relations Commission sent each Plaintiff a letter advising of his or her right to bring suit in the Court of Common Pleas. 49. As a result of their discharge, the Plaintiffs have suffered a loss of pay, commissions, and benefits, and have been subject to emotional distress. 50. The Defendant's misconduct in discharging Plaintiffs was an outrageous violation of Pennsylvania's Human Relations Act forbidding age discrimination, the creation ofa sexually hostile work environment, and retaliation. COUNT I Carl Winfield v. West Shore Chamber of Commerce 51. Paragraphs 1 through 50 are incorporated herein by reference as if set forth in their entirety. 52. Plaintiff Carl A. Winfield's discharge on or about May 14,2001, was motivated by, and constitutes age discrimination in violation ofthe Pennsylvania Human Relations Act. 53. Plaintiff Carl A. Winfield's dismissal also constitutes retaliation for his complaints about the hostile environment that the relationship between Christie and Messner had created and its affect on the ability of the office to function properly. 54. The dismissal is therefore the result of the Defendant's, acting through its supervIsory employees, Messner and Christie, in violation of the Human Relations Act's prohibition against the creation of a sexually hostile work environment and retaliation against employees who assert their right to be free of such a hostile environment. 251877.1\JMM\RT 6 I'. II WHEREFORE, Plaintiff Carl A. Winfield demands judgment against Defendant West Shore Chamber of Commerce for back pay, front pay, loss of commissions, benefits, counsel fees, and any other damages and remedies available under Pennsylvania law, including punitive damages, in an amount in excess of Thirty-Five Thousand ($35,000.00) Dollars, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II Audrev A. Hanna v. West Shore Chamber of Commerce 55. Paragraphs 1 through 50 are incorporated herein by reference as if set forth in their entirety. 56. Plaintiff Audrey A. Hanna's discharge on or about May 14,2001, was motivated by, and constitutes age discrimination in violation of the Pennsylvania Human Relations Act. 57. Plaintiff Audrey A. Hanna's dismissal also constitutes retaliation for her complaints about the hostile environment that the relationship between Christie and Messner had created and its affect on the ability ofthe office to function properly. 58. The dismissal is therefore the result of the Defendant's, acting through its supervIsory employees, Messner and Christie, violation of the Human Relations Act's prohibition against the creation of a sexually hostile work environment and retaliation against employees who assert their right to be free of such a hostile environment. WHEREFORE, Plaintiff Audrey A. Hanna demands judgment against Defendant West Shore Chamber of Commerce for back pay, front pay, loss of commissions, benefits, counsel fees, and any other damages and remedies available under Pennsylvania law, including punitive damages, in an amount in excess of Thirty-Five Thousand ($35,000.00) Dollars, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. 251877.1 \.JMMIR T 7 II. COUNT III Mary A. Fanned v. West Shore Chamber of Commerce 59. Paragraphs 1 through 50 are incorporated herein by reference as if set forth in their entirety. 60. Plaintiff Mary A. Fanucci's discharge on or about May 14, 2001, was motivated by, and constitutes age discrimination in violation of the Pennsylvania Human Relations Act. 61. Plaintiff Mary A. Fanucci's dismissal also constitutes retaliation for her complaints about the hostile environment that the relationship between Christie and Messner had created and its affect on the ability of the office to function properly. 62. The dismissal is therefore the result of the Defendant's, acting through its supervIsory employees, Messner and Christie, violation of the Human Relations Act's prohibition against the creation of a sexually hostile work environment and retaliation against employees who assert their right to be free of such a hostile environment. WHEREFORE, Plaintiff Mary A. Fanucci demands judgment against Defendant West Shore Chamber of Commerce for back pay, front pay, loss of commissions, benefits, counsel fees, and any other damages and remedies available under Pennsylvania law, including punitive damages, in an amount in excess of Thirty-Five Thousand ($35,000.00) Dollars, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT IV Bryce H. Brown v. West Shore Chamber of Commerce 63. Paragraphs 1 through 50 are incorporated herein by reference as if set forth in their entirety. 251877.1\JMM\RT 8 64. Plaintiff Bryce H. Brown's discharge on or about May 14, 2001, was motivated by, and constitutes age discrimination in violation of the Pennsylvania Human Relations Act. 65. Plaintiff Bryce H. Brown's dismissal also constitutes retaliation for his complaints about the hostile environment that the relationship between Christie and Messner had created and its affect on the ability of the office to function properly. 66. The dismissal is therefore the result of the Defendant's, acting through its supervIsory employees, Messner and Christie, violation of the Human Relations Act's prohibition against the creation of a sexually hostile work environment and retaliation against employees who assert their right to be free of such a hostile environment. WHEREFORE, Plaintiff Bryce H. Brown demands judgment against Defendant West Shore Chamber of Commerce for back pay, front pay, loss of commissions, benefits, counsel fees, and any other damages and remedies available under Pennsylvania law, including punitive damages, in an amount in excess of Thirty-Five Thousand ($35,000.00) Dollars, exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, ANGINO & ROVNER, P.C. J e M. Melillo, Esquire orney I.D. No. 26211 4503 North Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiffs Date: December 18, 2002 251877.11JMM\RT 9 VERIFICATION I, Mary A. Fanucci, Plaintiff, have read the foregoing and do hereby declare and affirm that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S. S 4904, relating to unsworn falsification to authorities. WITNESS: ~blx(j ~dt/J1(flJl) ~ 0, 1Q~~' Mary A anUCC1 Date: J ~ ) II J do 0 eX , VERIFICATION I, Bryce H. Brown, Plaintiff, have read the foregoing and do hereby declare and affirm that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. WITNESS: ~bbu) '71ftli~h)l) I Date: /:l/JJ) b~ I ~?!~ VERIFICATION I, Audrey A. Hanna, Plaintiff, have read the foregoing and do hereby declare and affirm that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S. S 4904, relating to unsworn falsification to authorities. WITNESS: '~ ~u~J a~o'%z,,~ Audrey A. H a Date: 1.2/;~/~,l , I VERIFICATION I, Carl A. Winfield, Plaintiff, have read the foregoing and do hereby declare and affirm that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. WITNESS: <'1 , J1ilAkA..t )'~%TjA L~ c:1cJ~~1 Carl A. Winfield Date: I if If I o~ h.J (J "'Ccl ~ 7t ~ ~ ~ ~ J-J Iv 0' j~r! J c' , 1(0 Jill M. Lashay, Esquire PA I.D. #79985 Klett Rooney Lieber & Schorling, P.C. 240 N. Third Street, Suite 600 Harrisburg, PA 17101-1503 (717) 231-7700 MARY A. FANUCCI, BRYCE H. BROWN: IN THE COURT OF COMMON PLEAS AUDREY A. HANNA and CARL A. : CUMBERLAND COUNTY, WINFIELD, : PENNSYLVANIA Plaintiffs v. : NO. 02 - 6005 ~STSHORECHAMBEROF COMMERCE, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW, comes the Defendant, West Shore Chamber of Commerce (hereinafter "the Chamber"), by its undersigned counsel, and filles Preliminary Objections to Plaintiffs' Complaint pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure, stating as follows: PRELIMINARY OBJECTION NO.1 (COUNTS I, II, III AND IV) Motion to Strike Complaint - Failure to Conform 1. In Counts I, II, III and IV, Plaintiffs appear to allege three separate causes of action against the Defendant, i.e., age discrimination, sex discriminationlharassment due to a sexually hostile work environment, and retaliation for complaints about a sexually hostile work environment. (Complaint at 'i['i[52-54; 56-58; 60-62; 64-66) KRLSHAR:22311.l 2. Specifically, Plaintiffs allege in Count I that Mr. Winfield's discharge from employment on May 14,2001 was motivated by and constitutes age discrimination. (Complaint at ~ 52) 3. Also in Count I, Plaintiffs allege that Mr. Winfield's dismissal from employment constitutes retaliation for his complaints about a sexually hostile work environment, and that he was subject to that sexually hostile work environment. (Complaint at ~~ 53,54) 4. Plaintiffs allege in Count II that Ms. Hanna's discharge from employment on May 14,2001 was motivated by and constitutes age discrimination. (Complaint at ~ 56) 5. Also in Count II, Plaintiffs allege that Ms. Hanna's dismissal from employment constitutes retaliation for her complaints about a sexually hostile work environment, and that she was subject to that sexually hostile work enviromnent. (Complaint at ~~ 57, 58) 6. Plaintiffs allege in Count III that Ms. F,mucci's discharge from employment on May 14,2001 was motivated by and constitutes age discrimination. (Complaint at ~ 60) 7. Also in Count III, Plaintiffs allege that Ms. Fanucci's dismissal from employment constitutes retaliation for her complaints about a sexually hostile work environment, and that she was subject to that sexually hostile work enviromnent. (Complaint at ~~ 61, 62) 8. Plaintiffs allege in Count IV that Mr. Brown's discharge from employment on May 14,2001 was motivated by and constitutes age discrimination. (Complaint at ~ 64) KRLSHAR:22311.1 -2- 9. Also in Count IV, Plaintiffs allege that Mr. Brown's dismissal from employment constitutes retaliation for his complaints about a sexually hostile work environment, and that he was subject to that sexually hostile work environment. (Complaint at ~~ 65,66) 10. Pursuant to Pa.R.C.P. I020(a), each cause of action and any special damages related thereto shall be stated in a separate count containing a demand for relief. Pa.R.C.P. 1020(a). 11. Plaintiffs' fail to conform to Rule 1020(a) to the extent they plead three claims in each Count of the Complaint. 12. In accordance with Pa.R.C.P. 1020(a), Plaintiffs must remove their claims for age discrimination, sex discrimination based upon a sexually hostile work environment, and retaliation for complaints regarding a sexually hostile work environment from Counts I through IV and include them in separate and distinct counts. WHEREFORE, the West Shore Chamber of Commerce respectfully requests that the Court order Plaintiffs to remove the three claims for age discrimination, sex discriminationlharassment and retaliation currently pled together in Counts I through IV and include them in separate and distinct counts with specific reference to any special damages allegedly arising out of each claim. KRLSHAR:22311.1 -3- PRELIMINARY OBJECTION NO.2 (COUNTS I, II, III AND IV) Demurrer - Leea1 InsufficieI~ 13. To the extent that Plaintiffs' Count I all(~ges sex discriminationlharassment in the form of the creation of a sexually hostile work environment, such claim is legally insufficient because Plaintiffs fail to state a cause of action for sex discriminationlharassment. (Complaint at ~~ 53-54) 14. To the extent that Plaintiffs' Count II alleges sex discriminationlharassment in the form of the creation of a sexually hostile work environment, such claim is legally insufficient because Plaintiffs fail to state a cause of action for sexual discriminationlharassment. (Complaint at ~~ 57-58) 15. To the extent that Plaintiffs' Count III alleges sex discriminationlharassment in the form of the creation of a sexually hostile work environment, such claim is legally insufficient because Plaintiffs fail to state: a cause of action for sexual discriminationlharassment. (Complaint at ~~ 61-62) 16. To the extent that Plaintiffs' Count IV alleges sex discriminationlharassment in the form of the creation of a sexually hostile work environment, such claim is legally insufficient because Plaintiffs fail to state a cause of action for sex discriminationlharassment. (Complaint at ~~ 65-66) KRLSHAR:22311.l -4- 17. To the extent that Plaintiffs allege retaliation in Count I ofthe Complaint for Mr. Winfield's complaints about a sexually hostile work environment, such claim is legally insufficient because Plaintiffs fail to state a cause of action for retaliation. (Complaint at ~~ 53- 54) 18. To the extent that Plaintiffs allege retaliation in Count II of the Complaint for Ms. Hanna's complaints about a sexually hostile work environment, such claim is legally insufficient because Plaintiffs fail to state a cause of action for retaliation. (Complaint at ~~ 57- 58) 19. To the extent that Plaintiffs allege retaliation in Count III of the Complaint for Ms. Fanucci's complaints about a sexually hostile work environment, such claim is legally insufficient because Plaintiffs fail to state a cause of action for retaliation. (Complaint at ~~ 61- 62) 20. To the extent that Plaintiffs allege retaliation in Count IV of the Complaint for Mr. Brown's complaints about a sexually hostile work environment, such claim is legally insufficient because Plaintiffs fail to state a cause of action for retaliation. (Complaint at ~~ 65- 66) 21. The Complaint fails to aver any facts to support claims against the Defendant that Plaintiffs were sexually harassed or discriminated against. 22. The Complaint also fails to aver any facts to support claims against the Defendant that Plaintiffs were retaliated against in response to alleged complaints about a sexually hostile work environment. KRLSHAR:22311.1 -5- 23. The averments of the Complaint related to Plaintiffs' alleged claims of sex discriminationlharassment and retaliation should be dismissed with prejudice. WHEREFORE, the West Shore Chamber of Commerce respectfully requests that Plaintiffs' Complaint be dismissed with prejudice for failure to state claims of sex discriminationlharassment and retaliation. PRELIMINARY OBJECTION NO.3 ( COUNTS I, II, III AND IV AND FACTS) Motion to Strike Complaint - Inclusion of Scandalous and Impertinent Matter 24. To the extent Plaintiffs' alleged claims of sex discrimination/harassment and retaliation are found to be legally insufficient, or are hereinafter withdrawn by Plaintiffs, the inclusion of any averment regarding a sexually hostile work environment or the relationship between Mr. Edward Messner and Ms. Karen Christie should be stricken from the Complaint pursuant to Rule 1028(a) (2) as scandalous and impertinent. (Complaint at ~~ 37- 42,53-54,57- 58,61-62, and 65-66) 25. Permitting this scandalous and impertin(~nt matter to remain in the Complaint would prejudice Defendant. WHEREFORE, the West Shore Chamber of Commerce respectfully requests that any and all references to facts which support Plaintiffs' claims of retaliation and sex discriminationlharassment due to a sexually hostile work environment be stricken from the Complaint. KRLSHAR:22311.1 -6- PRELIMINARY OBJECTION NO.4 (COUNTS I, II, III AND IV) Demurrer - Lees} Insufficiel~ 25. Plaintiffs' Complaint seeks an award of punitive damages following each Count. (Complaint) 26. Plaintiffs appear to allege claims of age discrimination, sex discriminationlharassment and retaliation under the Pennsylvania Human Relations Act; no other statutory or common law claims are raised. 27. Plaintiffs fail to state a cause of action that would support an award of punitive damages. 28. Punitive damages are not available to Plaintiffs under the Pennsylvania Human Relations Act. WHEREFORE, the West Shore Chamber of Commerce respectfully requests that Plaintiffs' prayer for punitive damages as relief for any ofthe claims raised in the Complaint be dismissed with prejudice. Respectfully submitted, KLETT ROONEY LIEBER & SCHORLING ~-e(~t JILL ASHAY, SQUIRE . Pa. LD. No. 79985 ALLEN C. WARSHAW Pa. LD. No. 17145 240 North Third Street, Suite 600 Harrisburg, P A 17101 (717) 231-7700 Attorneys for Defendant West Shore Chamber of Commerce KRLSHAR:22311.1 -7- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PRELIMINARY OBJECTIONS TO COMPLAINT was served on this 10th day of January, 2003, by first class U.S. mail upon the following: Joseph M. Melillo, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, P A 1711 0-1708 KRLSHAR:22311.1 ~- JILL . LAS A Y, SQUIRE l' o C ;::JI' -cc rl~: r..~': ~.. -~..,.- ..'7'-......f ~) :~y~ . G=( ~F "r- ...- ",y'.("'-' ~ . c::;; <...0 'I ~ , '- ';:.f ~-\.... ......s- C) '-') <["I " Jill M. Lashay, Esquire PA J.D. #79985 Klett Rooney Lieber & Schorling, p.e. 240 N. Third Street, Suite 600 Harrisburg, PA 17101-1503 (717) 231-7700 MARY A. F ANUCCI, BRYCE H. BROWN: IN THE COURT OF COMMON PLEAS AUDREY A. HANNA and CARL A. : CUMBERLAND COUNTY, WINFIELD, : PENNSYL VANIA Plaintiffs v. : NO. 02 - 6005 WEST SHORE CHAMBER OF COMMERCE, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ORAL ARGUl\tIENT TO THE PROTHONOTARY: KINDL Y LIST THIS MATTER FOR ARGUMENT ON FEBRUARY 12,2003. 1. The matter to be submitted for argument involves Preliminary Objections of Defendant West Shore Chamber of Commerce to Plaintiffs' Complaint. 2. Preliminary Objections of the Defendant are timely filed, contemporaneous with this Praecipe of Oral Argument, with the Prothonotary's Office on January 10,2003. 3. A Brief in Support of Defendant's Preliminary Objections will be filed in accordance with Local Rule 210-6 on or before January 31, 2003. 4. A transcript is not required for disposition of this argument. 5. I certify that notice has been given to all counsel of record of the filing of this Praecipe. KRLSHAR:22331.1 t. Respectfully submitted, KLETT ROONEY LIEBER & SCHORLING A Professional Corporation BY: ~/ll.c/~/ Jill M. Lashay, EsqUIre 240 North Third Street, Suite 600 Harrisburg, PA 17101-1503 (717) 231-7722 Counsel for Defendant West Shore Chamber of Commerce Dated: January 10, 2003 KRLSHAR:22331.1 CERTIFICATE OF SERVICE I HEREB Y CERTIFY that a true and correct copy of the foregoing PRAECIPE FOR ORAL ARGUMENT was served on this 10th day of January, 2003, by first class U.S. mail upon the following: Joseph M. Melillo, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 ~4~~D" JILL M. ASHA Y, UI KRLSHAR:22331.l o ~~ vcr~ (11(j ~.'-T Z'"'" (l)F ~:~.,: ~(;::i -- ( Z ~ " Ct W o ";, : ! ~ }~';:;>> ..\]..... ..;....... o ..., ..-...... :..., .;:- CASE NO: 2002-06005 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FANUCCI MARY A ET AL VS WEST SHORE CHAMBER OF COMMERCE CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served Upon DEFENDANT WEST SHORE CHAMBERS OF COMMERCE the at 411 TRINDLE ROAD , at 1352:00 HOURS, on the 23rd day of December, 2002 EDWARD MESSNER, PRESIDENT CAMP HILL, PA 17011 by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 8.97 .00 10.00 .00 36.97 So Answers: .~~<~ R. Thomas Kline 12/26/2002 ANGINO & RO Sworn and Subscribed to before me this 3M( day of ~.J>J7 c2OU3 A.D. /' ~ /l '), A A A,Z;- l ""J, {.-l.!.. ~ =r=--'- . / Prothonotary' Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 02.-6005 CIVIL TERM MARY A. FANUCCI, BRYCE H. BROWN, AUDREY A. HANNA and CARL A. WINFIELD, v. WEST SHORE CHAMBER OF COMMERCE, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS Before HOFFER. P.J. and OLER. J. ~DER~T AND NOW, this ~ day 0 ,2003, after careful consideration of counsel's briefs and after oral argument on the defendant's Preliminary Objections, it is hereby ORDERED, ADJUDGED AND DECREED that: (1) The defendant's first Preliminary Objection to the plaintiffs' Complaint for failure to conform to Pa. R.C.P. 1020(a) is OVERRULED and DISMISSED. (2) The defendant's second Preliminary Objection to the plaintiffs' Complaint for failure to state a cause of action for sex discrimination/harassment is OVERRULED and DISMISSED. (3) The defendant's third Preliminary Objection to the plaintiffs' Complaint for inclusion of scandalous and impertinent matter pursuant to Pa.R.C.P. 1028(a)(2) is OVERRULED and DISMISSED. " ~, \;I1f\lvmASNN3d \" .,,-. ,'., ,.,,-w,,'" I J_i\1 :::":'-'C!ni Iv Sc :i] r',:\i 91 r~nr ro )"b'~/:.C-, ',"_. L. :-~'tJ ,r-; (4) The defendant's fourth Preliminary Objection to the plaintiffs' Complaint requesting an award of punitive damages is SUSTAINED. BY THE COURT P.J. Joseph M. Melillo, Esquire Joan L. Stehulak, Esquire Angino & Rovner 4503 North Front Street Harrisburg, PA 17110-1708 For the Plaintiffs ~ ~A. (,.11-03 cr. Jill M. Lashay, Esquire Allen C. Warshaw, Esquire Klett Rooney Lieber & Schorling, P .C. 240 North Third Street, Suite 600 Harrisburg, PA 17101-1503 For Defendant West Shore Chamber of Commerce Jill M. Lashay, Esquire PA J.D. #79985 Klett Rooney Lieber & Schorling, P.c. 240 N. Third Street, Suite 700 Harrisburg, PA 17101-1503 (717)231-7722 MARY A. FANUCCI, BRYCE H. BROWN: IN THE COURT OF COMMON PLEAS AUDREY A. HANNA and CARL A. CUMBERLAND COUNTY, WINFIELD, PENNSYLVANIA Plaintiffs v. : NO. 02 - 6005 WEST SHORE CHAMBER OF COMMERCE, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Mary A. Fanucci, Bryce H. Brown, Audrey A. Hanna, and Carl A. Winfield clo Joseph M. Melillo, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or a judgment may be entered against you. ~~ Jill ashay, Esq re KLETT ROONEY LIEBER & SCHORLING, P.c. 240 North Third Street, Suite 700 Harrisburg, PA 17101-1503 (717) 231-7722 Counsel for Defendant KRLSPGH;24286.1 Jill M. Lashay, Esquire PA J.D. #79985 Klett Rooney Lieber & Schorling, P.c. 240 N. Third Street, Suite 600 Harrisburg, PA 17101-1503 (717)231-7700 MARY A. FANUCCI, BRYCE H. BROWN: IN THE COURT OF COMMON PLEAS AUDREY A. HANNA and CARL A. CUMBERLAND COUNTY, WINFIELD, PENNSYLVANIA Plaintiffs, v. NO. 02 - 6005 WEST SHORE CHAMBER OF COMMERCE, Defendant. CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER 1. Defendant admits the averments of Paragraph 1 of the Complaint. 2. Defendant admits the averments of Paragraph 2 of the Complaint. 3. Defendant admits the averments of Paragraph 3 of the Complaint. 4. Defendant admits the averments of Paragraph 4 of the Complaint. 5. Defendant admits the averments of Paragraph 5 of the Complaint. 6. The averments contained in Paragraph 6 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. 7. Defendant admits in part and denies in part the averments of Paragraph 7 of the Complaint. Defendant admits that Carl Winfield was hired on January 10, 2000 as a membership KRLSHAR:24204.2 recruiter. Defendant denies that Mr. Winfield performed his work properly and in accordance with his employer's expectations at all times. To the contrary, Mr. Winfield failed to perform his work properly and failed to meet Chamber expectations to the extent he engaged in acts of insubordination and professional misconduct. 8. Defendant denies the averments of Paragraph 8 ofthe Complaint. Defendant hired two staff persons through an employment agency in March and April 2001. Amy Dirle was hired by the Chamber on a part-time basis in March 2001 and moved into a full-time position in April 2001. Marisa Loffredo was hired as a full-tim(: employee of the Chamber in April 2001. 9. Defendant admits the averments of Paragraph 9 of the Complaint. 10. Defendant denies the averments of Paragraph 10 of the Complaint. Ms. Aumen resigned from the Chamber to accept a position as the Communications Director at the Gettysburg YMCA. She did not resign because she found the work environment at to be hostile and uncomfortable. Instead, she viewed her work at the Chamber as enjoyable, valuable and a satisfying employment experience. 11. Defendant admits the averments of Paragraph 11 of the Complaint. 12. Defendant admits in part and denies in part the averments of Paragraph 12 of the Complaint. Defendant admits that Mary Fanucci was hired in September 1989 as an administrative services employee. Defendant denies that Ms. Fanucci performed her work properly and meet the expectations of her employer from 1989 forward. To the contrary, KRLSHAR:24204.2 -2- Ms. Fanucci failed to perform her work properly and failed to meet Chamber expectations to the extent she engaged in acts of insubordination and professional misconduct. 13. Defendant admits in part and denies in part the averments contained in Paragraph 13 of the Complaint. Defendant denies that Mr. Messner was the Executive Director of the Chamber. He was the President. Defendant further denies that :\Ir. Messner had a meeting with Ms. Fanucci on April 19, 2001 regarding her retirement plans. Defendant admits that, sometime in April, 2001, Mr. Messner had a conversation with Ms. Fanucci regarding her previously expressed interest in retiring from the Chamber on August 1, 2001, when she became eligible for medicare. Sometime in the month of April, 2001, Mr. Messner asked Ms. Fanucci if she was still going to follow through with her intention to retire on August 1, 2001. 14. Defendant admits in part and denies in part the averments contained in Paragraph 14 of the Complaint. Defendant admits that Ms. Fanucci told Mr. Messner that she no longer intended to retire in August, 2001. Defendant denies that Ms. Fanucci told him on April 19, 2001 that she "enjoyed her job." To the contrary, Ms. Fanucci told Mr. Messner sometime in April 2001 that she did not enjoy her work at the Chamber anymore. 15. Defendant denies the averments contained in Paragraph 15 of the Complaint. Ms. Fanucci never asked Mr. Messner ifhe wanted her to retire, and Mr. Messner never told her he would "let [her] know on Monday." To the contrary, Ms. Fanucci asked Mr. Messner ifhe wanted her to resign to which he replied that he would let her know later. 16. Defendant admits the averments of Paragraph 16 of the Complaint. KRLSHAR:24204.2 -3- 17. Defendant denies the averments of Paragraph 17 of the Complaint. Ms. Dirle was hired in a part-time capacity in March 2001. She was moved to a full-time position in April 2001. 18. Defendant denies the averments contained in Paragraph 18 of the Complaint. To the contrary, in December 2000, the Chamber's Board of Directors approved funding for the creation of an Administrative Assistant or Events Coordinator position, whichever was deemed most appropriate by Mr. Messner to meet the Chamber's needs in the year 2001. 19. Defendant admits the averments of Paragraph 19 of the Complaint. 20. Defendant admits in part and denies in part the averments of Paragraph 20 of the Complaint. Defendant admits that Mr. Messner offered Ms. Fanucci the option to take a paid leave of absence for reasons other than her age. Defendant denies that Mr. Messner told Ms. Fanucci "I would like you to take a leave of absence." (emphasis added) Mr. Messner merely asked Ms. Fanucci if she would like to take a leave of absence. 21. Defendant admits the averments of Paragraph 21 of the Complaint. 22. Defendant admits the averments of Paragraph 22 of the Complaint. 23. Defendant admits the averments of Paragraph 23 ofthe Complaint. 24. Defendant admits the averments of Paragraph 24 of the Complaint. 25. Defendant admits in part and denies in part the averments of Paragraph 25 of the Complaint. Defendant admits that Audrey Hanna was hired by Defendant as a project coordinator in October 1998. Defendant denies that Ms. Hanna performed her job and met the expectations of her employer at all relevant times. To the contrary, Ms. Hanna failed to perform KRL$HAR:24204.2 -4- her work properly and failed to meet Chamber expectations to the extent she engaged in acts of insubordination and professional misconduct. 26. Defendant admits in part and denies in part the averments of Paragraph 26 of the Complaint. Defendant admits that Ms. Dirle was moved from a part-time position to the position of Events Coordinator in April, 2001. Defendant denies that Amy Dirle assumed Ms. Hanna's duties. To the contrary, Ms. Hanna was responsible for projects and Ms. Dirle was responsible for events for the Chamber. 27. Defendant admits the averments of Paragraph 27 of the Complaint. 28. Defendant admits the averments of Paragraph 28 of the Complaint. 29. Defendant denies the averments of Paragraph 29 of the Complaint. To the contrary, Mr. Brown failed to perform his work properly and failed to meet Chamber expectations to the extent he engaged in acts of insubordination and professional misconduct. 30. Defendant admits the averments of Paragraph 30 of the Complaint. 31. Defendant denies the averments of Paragraph 31 ofthe Complaint. President Messner did not call Mr. Brown into the conference room of the Chamber to tell him that the Board of Directors pointed out that he had a very negative attitude. To the contrary, sometime in May, 2001, Mr. Messner called Mr. Brown into his office and told him that Mr. Messner perceived Mr. Brown to have a negative attitude and that his attitude needed to improve. 32. Defendant admits that Mr. Brown told Mr. Messner that if Mr. Messner perceived his attitude as negative, he would change it. KRLSHAR:24204.2 -5- 33. After reasonable investigation, Defendant is without sufficient knowledge or information to admit or deny the averments of Paragraph 33 of the Complaint and therefore denies the same. 34. Defendant denies the averments contained in Paragraph 34 of the Complaint. Mr. Messner had no knowledge that Mr. Brown contacted Mr. Keith and therefore did not become upset or tell Mr. Brown that he had no right to contact Mr. Keith. 35. Defendant admits in part and denies in part the averments of Paragraph 35 of the Complaint. Defendant admits that Messrs. Brown and Winfield were recruiters for the Chamber who signed up new members. Defendant further admits that on occasion Messrs. Brown and Winfield were acknowledged for their work in recruiting new members. Defendant denies that Messrs. Brown and Winfield recruited "many" new members and received praise from the Board of Directors about their work. Neither of these plaintiffs was praised by the Board of Directors of the Chamber for good work. 36. Defendant denies the averments of Paragraph 36 of the Complaint. Karen Christie was promoted to the position of Executive Vice President at the Chamber by the Chamber Board of Directors in 1996, and the office environment following her promotion remained friendly and professional, except for the Plaintiffs' acts of insubordination and professional misconduct. 37. Defendant admits in part and denies in part the averments contained in Paragraph 37 of the Complaint. Defendant admits that Karen Christie and Ed Messner would occasionally leave together for working lunches and for other work-related meetings without leaving a KRLSHAR:24204.2 -6- forwarding telephone number or the location where they could be reached. Defendant denies that such meetings and lunches were held by Mr. Messner and Ms. Christie on a "daily basis." Defendant further denies the remaining averments contained in Paragraph 37 of the Complaint. To the contrary, Karen Christie and Edward Messner developed and maintained a professional working relationship over the course of seven years of working together at the Chamber. 38. Defendant admits in part and denies in part the averments contained in Paragraph 38 of the Complaint. Defendant admits that at times Mr. Messner or Ms. Christie would dismiss the staff early. Defendant also admits that alcoholic beverages were occasionally served in the office during office hours for staff birthdays, holidays, and member receptions, etc. After reasonable investigation, Defendant is without knowledge or information as to which "next day" Plaintiffs are referring, when they aver that "[ e lmpty bottles of beer, wine and liquor were in the conference room the next day," and therefore denies the same. 39. Defendant denies the averments contained in Paragraph 39 ofthe Complaint. To the contrary, the relationship between Mr. Messner and Ms. Christie was professional. 40. After reasonable investigation, Defendant is without knowledge or information as to what Plaintiffs mean when they aver that they complained about "this." Therefore, Defendant denies this averment in Paragraph 40 of the Complaint. Defendant further denies the averment that Mr. Messner would not talk to staff for weeks at a time. At no time did Mr. Messner refuse to speak with staff for weeks at a time. 41. Defendant denies the averment in Paragraph 41 of the Complaint that Ms. Christie ignored long-standing Chamber policies. As the Executive Vice President, Ms. Christie abided KRLSHAR:24204.2 -7- by all Chamber "policies", i.e., the Chamber By-Laws and the Policies and Procedures Manual. After reasonable investigation, Defendant is without knowledge or information regarding what "appeals" Plaintiff references in this paragraph of the Complaint and therefore denies the same. To the extent a response is required, all comments from Plaintiffs regarding Ms. Christie were acknowledged and addressed by Mr. Messner. 42. Defendant denies the averments of Paragraph 42 of the Complaint. The relationship between Mr. Messner and Ms. Christie never resulted in the failure of the office to function properly and certainly did not deprive the staff of the ability to perform their assigned job duties. 43. Defendant admits in part and denies in part the averments of Paragraph 43 of the Complaint. Defendant admits that Mr. Messner dismissed Plaintiffs from their employment on or about May 14,2001. Defendant denies that this dismissal was without explanation. Mr. Messner conveyed to Plaintiffs on or about May 14,2001 and several times prior to their termination, the reasons for such termination. 44. Defendant admits in part and denies in part the averments of Paragraph 44 of the Complaint. Defendant admits that Jamie Lombardo was employed by the Chamber and resigned from her position on April 27, 2001, listing her last day of employment as May 4, 2001. Defendant denies that Ms. Lombardo was employed as a CPA. Ms. Lombardo was employed by the Chamber in the position of accountant. After reasonable investigation, Defendant is without sufficient knowledge or information to admit or deny the avemlent that Ms. Lombardo criticized KRLSHAR:24204.2 -8- Mr. Messner or Ms. Christie or that she believed she would be discharged if she did not first resign, and therefore denies the same. 45. Defendant denies the averments of Paragraph 45 of the Complaint. The functions of all of the dismissed employees were not assumed by younger employees. Some of those functions were and are currently performed by employees who are over the age of 40 years. 46. Defendant admits the averments of Paragraph 46 of the Complaint. 47. The averments contained in Paragraph 47 ofthe Complaint constitute conclusions of law for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. 48. After reasonable investigation, Defendant is without sufficient knowledge or information to admit or deny the averments of Paragraph 48 and therefore denies the same. 49. After reasonable investigation, Defendant is without sufficient knowledge or information to admit or deny the averments of Paragraph 49 and therefore denies the same. Defendant does aver, however, that Plaintiffs are not entitled to any form of relief because they have not been subjected to any unlawful, harassing or discriminatory action. 50. The averments contained in Paragraph 50 of the Complaint constitute conclusions of law for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the Pennsylvania Human Relations Act ("PHRA") at any time or in any manner. KRLSHAR:24204.2 -9- COUNT I CARL WINFIELD v. WEST SHORE CHAMBER 51. Paragraphs 1 through 50 are incorporated herein by reference as though set forth in full. 52. The averments contained in Paragraph 52 of the Complaint constitute conclusions of law for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the Pennsylvania Human Relations Act ("PHRA") at any time or in any manner. 53. The averments contained in Paragraph 53 of the Complaint constitute conclusions of law for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the PHRA at any time or in any manner. 54. The averments contained in Paragraph 54 of the Complaint constitute conclusions oflaw for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the PHRA at any time or in any manner. WHEREFORE, Defendant, West Shore Chamber of Commerce, respectfully requests that allegations in Count I of the Complaint be found lacking in merit and be dismissed with prejudice. KRLSHAR:242Q4.2 -10- COUNT II AUDREY A. HANNA v. WEST SHORE CHAMBER 55. Paragraphs 1 through 54 are incorporated herein by reference as though set forth in full. 56. The averments contained in Paragraph 56 of the Complaint constitute conclusions of law for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the PHRA at any time or in any manner. 57. The averments contained in Paragraph 57 of the Complaint constitute conclusions of law for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the PHRA at any time or in any manner. 58. The averments contained in Paragraph 58 of the Complaint constitute conclusions of law for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the PHRA at any time or in any manner. WHEREFORE, Defendant, West Shore Chamber of Commerce, respectfully requests that allegations in Count II of the Complaint be found lacking in merit and be dismissed with prejudice. KRLSHAR:24204.2 -11- COUNT III MARY A. FANUCCI v. WEST SHORE CHAMBER 59. Paragraphs 1 through 58 are incorporated herein by reference as though set forth in full. 60. The averments contained in Paragraph 60 of the Complaint constitute conclusions of law for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the Pennsylvania Human Relations Act ("PHRA") at any time or in any manner. 61. The averments contained in Paragraph 61 of the Complaint constitute conclusions oflaw for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the PHRA at any time or in any manner. 62. The averments contained in Paragraph 62 of the Complaint constitute conclusions of law for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the PHRA at any time or in any manner. WHEREFORE, Defendant, West Shore Chamber of Commerce, respectfully requests that allegations in Count III of the Complaint be found lacking in merit and be dismissed with prejudice. KRL$HAR:24204.2 -12- COUNT IV BRYCE H. BROWN v. WEST SHORE CHAMBER 63. Paragraphs 1 through 62 are incorporated herein by reference as though set forth in full. 64. The averments contained in Paragraph 64 of the Complaint constitute conclusions of law for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the PHRA at any time or in any manner. 65. The averments contained in Paragraph 65 of the Complaint constitute conclusions oflaw for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the PHRA at any time or in any manner. 66. The averments contained in Paragraph 66 of the Complaint constitute conclusions of law for which no responsive pleading is required. To the extent these averments could be deemed averments of fact, they are denied. Defendant did not violate the PHRA at any time or in any manner. WHEREFORE, Defendant, West Shore Chamber of Commerce, respectfully requests that allegations in Count IV of the Complaint be found lacking in merit and be dismissed with prejudice. KRLSHAR;24204.2 -13- NEW MATTER 1. The Complaint, and/or portions thereof, fails to state a claim upon which relief can be granted. 2. Plaintiffs were hired by Chamber President, Edward Messner. 3. Plaintiffs were discharged from their employment by Chamber President, Edward Messner. 4. The conduct about which Plaintiffs complain was taken for reasons other than Plaintiffs' ages. 5. Following the discharge of Messrs. Winfield and Bryce from their employment as membership recruiters, they were not replaced by individuals under the age of 40 years. 6. Plaintiffs were never subjected to a sexually hostile work environment. 7. Plaintiff Mary Fanucci is a female. 8. Plaintiff Audrey Hanna is a female. 9. Plaintiff Bryce Brown is a male. 10. Plaintiff Carl Winfield is a male. 11. Plaintiffs were never intentionally discriminated against by any Chamber employee or member of Chamber management because of their sex. 12. The alleged personal relationship between Mr. Messner and Ms. Christie did not impress the workplace with such a cast as to make Ms. Fanucci feel that she was judged only by her sexuality. KRLSHAR:24204.2 -14. 13. The alleged personal relationship between Mr. Messner and Ms. Christie did not impress the workplace with such a cast as to make Ms. Hanna feel that she was judged only by her sexuality. 14. The alleged personal relationship between Mr. Messner and Ms. Christie did not impress the workplace with such a cast as to make Mr. Brown feel that he was judged only by his sexuality. 15. The alleged personal relationship between Mr. Messner and Ms. Christie did not impress the workplace with such a cast as to make Mr. Winfield feel that he was judged only by his sexuality. 16. Mr. Messner did not treat men working at the Chamber less favorably than he treated women working at the Chamber. 17. Prior to their discharge, Plaintiffs never complained to anyone within Chamber management or the Chamber Board of Directors regarding any sexually hostile work environment or sexually harassing behavior. 18. Plaintiffs are precluded from seeking relief because they never informed Defendant of any action(s) which would constitute the alleged sexually hostile work environment to which they claim they were subjected. 19. The conduct about which Plaintiffs complain was taken for reasons other than in retaliation for complaints of a sexually hostile work environment. KRLSHAR:24204.2 -15- 20. Defendant's conduct and action(s) toward its employees are the result of legitimate business considerations and are based upon factors other than age, sex and/or retaliation. 21. Plaintiffs were discharged from their employment due to professional misconduct and their failure to follow the directives given to them by their supervisors. 22. Defendant acted in good faith and in accordance with applicable laws and regulations. 23. Defendant has not violated any of Plaintiffs' rights or harmed or damaged them in any way. 24. Defendant is not liable to Plaintiffs for any reason or in any amount. 25. Plaintiffs' claims are barred, in whole or in part, to the extent they failed to comply with any of the procedural requirements of the PHRA. 26. Plaintiffs' claims are barred, in whole or in part, to the extent they are untimely filed. 27. Plaintiffs are not entitled to a jury trial for claims arising under the Pennsylvania Human Relations Act. 28. Plaintiffs have failed and refused to mitigate their damages. 29. Plaintiffs fail to state any claim upon which back pay, front pay, loss of commissions, benefits, counsel fees, costs, declaratory or injunctive relief can be awarded. 30. Plaintiff fail to state any claim upon which relief of compensatory and/or punitive damages may be granted. KRLSHAR:24204.2 -16- 31. Plaintiffs fail to state any claim upon which the relief of damages for pain and suffering, emotional distress, embarrassment, humiliation or emotional injury can be granted. 32. Plaintiffs fail to state any claim upon which relief of damages in the form of equitable relief for front pay, reinstatement, reformation of employment records and/or letters of good reference can be granted. 33. Defendant reserves the right to amend its Answer and New Matter to assert additional affirmative defenses based upon information obtained during pretrial discovery in this action. WHEREFORE, Defendant, West Shore Chamber of Commerce, respectfully requests that the allegations in the above-captioned Complaint be found to lack any merit and that the Complaint be dismissed in its entirety with prejudice. Respectfully submitted, KLETT ROONEY LIEBER & SCHORLING ~;#cY~ JI . Lashay, Esqmre PAID No. 79985 240 North Third Street, Suite 700 Harrisburg, PA 17101 (717) 231-7700 Attorneys for Defendant West Shore Chanlber of Commerce Dated: June 30, 2003 KRLSHAR:24204.2 -17- VERIFICATION I, Edward Messner, President of the West Shore Chamber of Commerce, verifY that the statements of fact made in the foregoing Defendant's Answer and New Matter are true and correct to the best of my personal knowledge or information and belief. I understand that the statements in this Verification are made subject to the penalties of 18 Pa. C.S.A. ~ 4904 relating to unsworn falsification to authorities. t~)",~ EDWARD MESSNER Dated: June 30, 2003 KRLSHAR:24204.1 CERTIFICATE OF SERVICE Pursuant to the requirements of 1 PA Code S33.31, I hereby certify that I have this day served the foregoing Answer and New Matter on counsel for Plaintiffs, by first class mail, postage prepaid, as follows: Joseph M. Melillo, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PAl 711 0-1708 ~~ Dated this 30th day of June, 2003. KRLSHAR:24204.2 (") c: C) !E c...,' -q , "._J "-;~':r,' 7~ :;} nT!J! ......~ In 2::1.1 t;r- ......) - '~> C:... ~[: :i C) ~.., -0 .1. ""1 '=;C) :,?t," ("j ("-) !f;.Q .<- j";'1 C :....' ~:: ~ :n :7:1 -< ,..) -< MARY A. FANUCCI, BRYCE H. BROWN, AUDREY A. HANNA, and CARL A. WINFIELD, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 02-6005 WEST SHORE CHAMBER OF COMMERCE Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER 1. Defendant states a conclusion of law to which no response is required. 2. Admitted that Plaintiffs were hired by Edward Messner. It is further averred that Mr. Messner was acting as an authorized agent for the Defendant West Shore Chamber of Commerce. 3. Admitted that Plaintiffs were discharged by Edward Messner. By way of further response, Mr. Messner was acting as an authorized agent for the Defendant West Shore Chamber of Commerce. 4. Denied. The misconduct of Defendant's agent Messner was motivated by Plaintiffs' ages and constituted retaliation for Plaintiffs' complaints to Messner about the hostile work environment resulting from his relationship with Karen Christie. 5. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment and proof thereof is demanded. 6. Denied. Messner's relationship with Christie generated a sexually hostile work environment adversely affecting all Plaintiffs. 7. Admitted. 263286.1\JMM\RT 8. Admitted. 9. Admitted. 10. Admitted. 11. Denied. The sexually hostile work enviromnent created by Messner's and Christie's relationship constitutes sex discrimination under applicable law, as does discharging the Plaintiffs in retaliation for their complaints about the sexually hostile work environment so created. 12. Denied as stated. The personal relationship between Messner and Christie created a sexually hostile work environment. Thus, gender was one apparent motivating factor in creating the adverse employment conditions to which Ms. Fanucci was subject, and that led to her discharge from employment when she opposed the sexually hostile work environment. 13. Denied as stated. The personal relationship between Messner and Christie created a sexually hostile work environment. Thus, gender was one apparent motivating factor in creating the adverse employment conditions to which Ms. Hanna was subject, and that led to her discharge from employment when she opposed the sexually hostile work environment. 14. Denied as stated. The personal relationship between Messner and Christie created a sexually hostile work environment. Thus, gender was one apparent motivating factor in creating the adverse employment conditions to which Mr. Brown was subject, and that led to his discharge from employment when he opposed the sexually hostile work environment. 15. Denied as stated. The personal relationship between Messner and Christie created a sexually hostile work environment. Thus, gender was one apparent motivating factor in creating the adverse employment conditions to which Mr. Winfield was subject, and that led to his discharge from employment when he opposed the sexually hostile work environment. 263286.1\JMM\RT 2 16. Denied as stated. Mr. Messner favored Karen Christie because of her sex, which led to a sexually hostile work environment adversely affecting both male and female employees. 17. Denied. Plaintiffs complained to Edward Messner, who is a Chamber managing agent. 18. Defendant states a conclusion of law to which no response is required. By way of further response, Plaintiffs did complain of the effect of Messner's and Christie's relationship upon the work environment and their ability to perform their jobs. 19. Denied. The misconduct forming the gravamen of Plaintiffs' complaint was the result of a sexually hostile work environment and age discrimination. 20. Denied. Defendant's misconduct did not stem from legitimate business considerations, but rather constituted retaliation for Plaintiffs' complaints about the sexually hostile work environment resulting from Christie's and Messner's relationship, and was also the result of age bias. 21. Denied. Plaintiffs at all times discharged their professional duties responsibly and appropriately, and within the guidelines outlined by the Chamber of Commerce and its supervisors. 22. Denied. Defendant, through its supervisory agents and employees, acted in bad faith toward the Plaintiffs in violation of the Pennsylvania Human Relations Act. 23. Denied. Defendant, through its supervisory agents and employees, created a hostile work environment and illegally discharged the PlaintifIs in violation of Pennsylvania law. 24. Defendant states a conclusion of law to which no response is required. 25. Defendant states a conclusion of law to which no response is required. 26. Defendant states a conclusion of law to which 110 response is required. 263286.1\JMM\RT 3 27. Defendant states a conclusion of law to which no response is required. 28. Denied. Plaintiffs have sought to mitigate their damages. 29. Defendant states a conclusion of law to which no response is required. 30. Defendant states a conclusion of law to which no response is required. 31. Defendant states a conclusion of law to which no response is required. 32. Defendant states a conclusion of law to which no response is required. 33. No response required. WHEREFORE, Plaintiffs demand judgment against Defendant. Respectfully submitted, ANGINO & ROVNER, P.C. f \ ? ,,/ e{ V1h ~drhG J ep . Melillo, Esquire ttorney ID. No. 26211 4503 North Front Street Harrisburg, P A 1711 0 (717) 238-6791 Attorney for Plaintiffs Date: July 23, 2003 263286.1\JMM\RT 4 :1 ,I VERIFICATION I, Mary A. Fanucci, Plaintiff, have read the foregoing ,md do hereby declare and affirm that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S. S 4904, relating to unsworn falsification to authorities. WITNESS: ~ 'h 7!lJdI Date: 7/021 JO,3 ilL. Q. ':(~ # N_ ~anucci VERIFICATION I, Bryce H. Brown, Plaintiff, have read the foregoing and do hereby declare and affirm that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S. S 4904, relating to unsworn falsification to authorities. WITNESS: r'i-1 'YVl.,7(,~, t. , v Date: 7 -j 7- 03 . ~~2/2L<~ ryce . Brown .11 CERTIFICATE OF SERVICE AND NOW, this 23rd day of July, 2003, I, Robbie Tejchman, an employee of the law firm of Angino & Rovner, P.C., hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing same in the first class, United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Jill M. Lashay, Esquire Allen C. Warshaw, Esquire Klett Rooney Lieber & Schorling 240 North Third Street, Suite 600 Harrisburg, P A 17101 ('~J4~ Robbie Tejchman 263286.11lMM\RT -C: n-i'- ..,~ ' ..:- -,7 Ci"? r'~~': I. ::::--. ~ ~-! )0" C) ~~.: co -;'; c= ;-'--.J ...C' '0 \ ~:.: o~ . ~ca.s Cu;C '--J& VERIFICATION I, Carl A. Winfield, Plaintiff, have read the foregoing and do hereby declare and affirm that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S. S 4904, relating to unsworn falsification to authorities. WITNESS: ~/ ~~~ ~c,~ t::'J~--e~ Carl A. Winfield Date: 7 - 2~- C> 3 (") c -oEt: [pr:o Z:T ze. (j~-,._,:. -.. .'.-- r::::C' ;-;: ~ 7l...; ~(.l >(~ ~ -< o w ~ ~ Ci') I .<:" ~ ..-0 ~~;R --lrn J't : -_~C) }~: =H i~ ;..J ..-\ ?5 '< ''0 =lI: ~ ::> O~ -,-Q:)S fi(J"(~ VERIFICATION I, Audrey A. Hanna, Plaintiff, have read the foregoing and do hereby declare and affirm that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. WITNESS: _/~ _&~7//~~. A/$ -~~ tbd1J 0 ~/)\J~ Audrey A. H a Date: 7- 22 - 03 0 Cl 0 c:: W -n -:;C" ~ .--1 "- -ocr) ~ ~~~ rnr: c;-> Z:J. , I ;--,1"1'1 t;3t:: S .r:- -1) " ....-:,~ ,-).-\ -< .....~ ~ { ...~ r::'.'. --C "~ -l"i '<" :5-),..: 2":c' :::l'~ -'.-0 ~(-:l Cf! ;~-5 rn C -I :z '::> :P- ~ :J:J -< o. Jill M. Lashay, Esquire PA 1.0. #79985 Klett Rooney Lieber & Sch<ilrling, P.C. 240 N. Third Street, Suite 6PO Harrisburg, PA 17101-1503 (717) 231-7700 MARY A. FANUCCI, iBRYCE H. BROWN: IN THE COURT OF COMMON PLEAS AUDREY A. HANN1and CARL A. CUMBERLAND COUNTY, WINFIELD, PENNSYLVANIA laintiffs , v. NO. 02 - 6005 , WEST SHORE CHA1j1BER OF COMMERCE, L ~efendants I ! DEFENDANT'sl MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS I CIVIL ACTION - LAW JURY TRIAL DEMANDED NOW 40MES Defendant, West Shor;: Chamber of Commerce ("the Chamber"), through its underSigneh counsel and, pursuant to Rule 1034(a) of the Pennsylvania Rules of Civil I i Procedure, moves for ~artial judgment on the pleadings against Plaintiffs, Mary Fanucci, Audrey Hanna, Carl Winfield ~nd Bryce Brown ("Plaintiffs"), with respect to two of the three claims Plaintiffs allege in thejr Complaint. As fully set forth in the attached Brief in Support of Defendant's Motion for I , I Partial Judgment on t~e Pleadings, which is incorporated herein, the Chamber is entitled to judgment as a matter f law on Plaintiffs' claims of sexual discriminationlharassment and retaliation for compl nts of a sexually hostile work environment in violation of the Pennsylvania Human Relations Act! Plaintiffs have not and cannot state a prima facie case of sexual diOC'imimti'-1~' ~ reWi,ti,n " ~~, <h,ti imti~ b~d~ ,f pm'f on <h." d,i=. KRLSHAR,24913.1 ! I ! WHEREFORE, partial judgment on the pleadings should be granted in favor of the West Shore Chamber of Commerce and the claims of sexual discriminationlharassment and retaliation should be dismissed with prejudice. KLETT ROONEY LIEBER & SCHORLING Dated: October 24, 20P3 J~~~~{~f~ Pa. J.D. No. 79985 240 North Third Street, Suite 600 Harrisburg, P A 17101 (717) 231-7700 Attorneys for Def(mdant West Shore Chamber of Commerce KRLSHAR:24913.1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthol foregoing MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS was served on this 24th day of October, 2003, via first class U.S. mail upon the following: Josep$' Melillo, Esquire Angin & Rovner, P.C. 4503 rth Front Street Harris~g, PA 17110-1708 ~. C yff/?l'.' / z:_ JlL~LASHA Y, QUIRE - C KRLSHAR:24913.1 -.-; -, C) ("- -::,,~ ("' '",", (~'l Jill M. Lashay, Esquire P A I.D. #79985 Klett Rooney Lieber & S1hOrling, P.c. 240 N. Third Street, Suite 600 Harrisburg, PA 17101-1.03 (717) 231-7700 MARY A. FANUCC" BRYCE H. BROWN: IN THE COURT OF COMMON PLEAS AUDREY A. HANNt. and CARL A. : CUMBERLAND COUNTY, WINFIELD,. : PENNSYLVANIA I Plaintiffs ! v. : NO. 02 - 6005 WEST SHORE CHAt1BER OF COMMERCE, , IDefendants I I I CIVIL ACTION - LAW JURY TRIAL DEMANDED I I TO THE PROTHONqTARY: I KINDLY LIS'I! THIS MATTER FOR ARGUMENT ON FEBRUARY 4,2004. , I 1. I The matter to be submitted for argument involves Defendant's Motion for Partial Judgment On T~e Pleadings. I 2. pefendant's Motion for Partial Judgment was timely filed with the I Prothonotary's Office $n October 24, 2003. I 3. ,j\ Brief in Support of Defendant's Motion for Partial Judgment on the PRAECIPE FOR ORAL ARGUMENT Pleadings was also file with the Motion on October 24'h and served on counsel for Plaintiffs. 4. other copy of said Brief will again be provided again to the court in accordance with Local ule 210-6 on or before January 23,2004. 5. I "","""pt i. 00' req"ired ,., ili"".itioo ""hi. "=00'. I , KRLSHAR:25577.! 6. I certify that notice has been given to all counsel of record of the filing of this Praecipe. Respectfully submitted, KLETT ROONEY LIEBER & SCHORLING A Professional Corporation BY ~~~ 240 North Third Street, Suite 600 Harrisburg, PA 17101-1503 (717) 231-7722 Counsel for Defendant West Shore Chamber of Commerce I Dated: October 27, 20f3 KRLSHAR:25577.1 CERTIFICATE OF SERVICE I HE~BY CERTIFY that a true and correct copy of the foregoing PRAECIPE FOR ORAL ARGU~ENT was served on this 27th day of October, 2003, by first class U.S. mail upon the followijIg: I Josep~M. Melillo, Esquire Angin & Rovner, P.C. 4503 orth Front Street Harris urg, PA 17110-1708 Qr~~ JIL . LA HA 1 QUIRE KRlSHAR:25577.1 f Co'::) ~ (", 0 ._" ~$ " ....-' ...... 11"1,:];1 ~' N <?'''l -., :-30 ~C" 06 :.:::: . -" ~J"f' f8' ::r ."':!i ~o j iSi 0"'" - ~ w 14. Mary A. Fanucci, Bryce H. Brown, Audrey A. Hanna and Carl A. Winfield : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V West Shore Chamber ofConunerce : NO. 02-6005 CNIL TERM ORDER OF COURT AND NOW, December 11,2003, by agreement of counsel, the above-captioned matter is continued from the December 3, 2003 Argument Court list. Counsel is directed to relist the case when ready. By the Court, vfuseph M. Melillo, Esquire For the Plaintiff Court Administrator oI1ill M. Lashay, Esquire > For the Defendant Id '1;N'i,~lASN".Bcl A.1J,!rv."'irl ,--.:.;\,n;u!~~.w"nJ , l' :7 'U I' n->-, "I) L(,.o 0 r~,.. t J"""u t,.. )J:N1C,.._ -_,~ ::!O '-! Jill M. Lashay, Esquire PA I.D. #79985 Klett Rooney Lieber & Schorling, P.c. 240 N. Third Street, Suite 600 Harrisburg, PA 17101-1503 (717) 231-7700 MARY A. FANUCCI, BRYCE H. BROWN: IN THE COURT OF COMMON PLEAS AUDREY A. HANNA and CARL A. : CUMBERLAND COUNTY, WINFIELD, : PENNSYLVANIA Plaintiffs, v. : NO. 02 - 6005 WEST SHORE CHAMBER OF COMMERCE, Defendants. CIVIL ACTION - LAW : JURY TRIAL DEMANDED UNOPPOSED MOTION TO SCHEDULE DEFENDANT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS FOR ORAL ARGUMENT ON FEBRUARY 4. 2004 NOW COMES Defendant, West Shore Chamber of Commerce ("the Chamber"), through its undersigned counsel and moves this honorable court to schedule Defendant's Motion for Partial Judgment on the Pleadings for oral argument on February 4,2004. The following reasons support the Chamber's motion: 1. The matter to be submitted for argument involves Defendant's Motion for Partial Judgment On The Pleadings. 2. Defendant's Motion for Partial Judgment was timely filed with the Prothonotary's Office on October 24,2003. 3. A Brief in Support of Defendant's Motion for Partial Judgment on the Pleadings was also filed with the Motion on October 24th and served on counsel for Plaintiffs. KRLSHAR:26572.1 -1- 4. Plaintiffs timely filed a Brief In Opposition To Defendant's Motion for Partial Judgment On The Pleadings on January 27,2004. 5. A Praecipe for Oral Argument was filed by Defendant on October 27, 2003 requesting argument on February 4, 2004. 6. The Court subsequently notified the parties that argument would be held on December 3, 2003, a date on which neither counsel for Plaintiffs or Defendant could appear. 7. Defendant's counsel communicated with the Court via correspondence to request removal of the action from the December Argument Court date, as the February 4,2004 date was preferred by all parties. 8. The parties mistakenly believed that the argument was placed on the February 4th Argument Court calendar and wish to proceed with oral argument on this date. 9. The Court Administrator has been contacted by Defendant's counsel and she has agreed that time will be set aside on the February 4, 2004 calendar for argument on Defendant's Motion for Partial Judgment on the Pleadings. 10. 11. All parties to this action concur in the filing ofthis motion. A transcript is not required for disposition ofthis argument. KRLSHAR:26572.! -2- 12. Notice has been given to all counsel of record of the filing of this Motion. Respectfully submitted, KLETT ROONEY LIEBER & SCHORLING A Professional Corporation BY: ~';~ ?ill_~~ES~ 240 North Third Street, Suite 600 Harrisburg, PA 17101-1503 (717) 231-7722 Counsel for Defendant West Shore Chamber of Commerce Dated: January 30, 2004 KRLSHAR:26572.! -3- CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing UNOPPOSED MOTION TO SCHEDULE DEFENDANT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS FOR ORAL ARGUMENT ON FEBRUARY 4, 2004 was served on this 30th day of January, 2004, by first class U.S. mail upon the following: Joseph M. Melillo, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 ~~~~~ JILL . ASHA Y, QUIRE 0- KRlSHAR:26572.1 -4- g ~ ~ ~ ~ ~F! -00-' <- t11\':', ~ Z-~..L' ~2~:":' (,,) a~ 0 ~CJ ~-ri ;ZQ ~ O'n " t...! Z~ ':i>c 9 9 ~ - ~ - MARY A. FANNUCI, BRYCE H. BROWN, AUNDRY A. HANNA and CARL A. WINFIELD, Plaintiffs : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA NO. 02-6005 CIVIL TERM v, WEST SHORE CHAMBER OF COMMERCE, CIVIl. ACTION-LAW Defendant IN RE: DEFENDANT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS Before HOFFER. P.J. and CL.ER. J. RDER OF. COURT AND NOW, this ~day of .,2004, upon consideration of Defendant's and Plainti ' riefs in support and in opposition to the Defendant's Motion for Partial Judgment on the Pleadings, and upon hearing the oral arguments of both parties, it is hereby ORDERED that Defendant's Motion is GRANTED. Plaintiffs' claim for sexual discrimination based on a sexually hostile environment and claim for retaliation are hereby DISMISSED, By the Court, Joseph M, Melillo, Esquire 4503 North Front Street Harrisburg, PA 17110 For the Plaintiffs Jill M, lasha.r' Esquire 240 North 3' Street, Ste. 600 Harrisburg, PA 17101-1503 For thl9 Defendant ~~ 1_/3,0'1 c;L. \i!Nlf/\lASNN3d I ".jnrn n.r,il'.;::V"W'l'''\ /\J..I\l1 !~, \.' -..' ", ..,_ '".ddIV 00 :2 ~ld t: I lfW ~OOZ J1.fv10NOH10t1d 3Hl :10 :J:J!~JO-G3llj MARY A. FANNUCI, BRYCE H. BROWN, AUNDRY A. HANNA and CARL A. WINFIELD, Plaintiffs : IN THE COURT OF COMMON : .PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA NO. 02-6005 CIVIL TERM v, WEST SHORE CHAMBER OF COMMERCE, CIVIl. ACTION-LAW Defendant IN RE: DEFENDANT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS Before HOFFER. P.J. and OL.ER. J. Hoffer, P.J. PROCEDURAL HISTORY Plaintiffs Mary A. Fanucci, Bryce H. Brown, Audrey A. Hanna and Carl A. Winfield are all former employees of Defendant West Shore Chamber of Commerce. Defendant hired the Plaintiffs at different times for varying positions: Plaintiff Carl Winfield was hired on January 10, 2000, as a membership recruiter; Plaintiff Mary Fanucci was hired in September 1989 as an administrative services employee; Plaintiff Audrey Hanna was hired in October 1998 as a project coordinator; and Plaintiff Bryce Brown was hired in May 1995 as a membership recruiter, Defendant employed Plaintiffs until May 14, 2001, at which time they were dismissed from employment. Plaintiffs filed a Complaint in this Court on D,ecember 18, 2002. Plaintiffs alleged that "Defendant's misconduct in discharging Plaintiffs was '. an outrageous violation of Pennsylvania's Human Relations Act forbidding age discrimination, the creation of a sexually hostile work environment, and retaliation." Complaint at '1150, Each Plaintiff brought a separate Count against Defendant for claims of age discrimination, sexually hostile environment and retaliation. Complaint at '11'II52-:54; 56-58; 60-62; 64-66. On January 10, 2003, Defendant filed four preliminary objections, Defendant moved to strike Plaintiffs' Complaint for (1) failure to conform, (2) failure to state a claim for sexual discrimination/harassment and retaliation, (3) inclusion of scandalous and impertinent matter and (4) legal insufficiency for a an award of punitive damages, On June 16, 2003, this Court sustained only Defendant's objection to punitive damages. Defendant subsequently filed its Answer and New Matter on June 30, 2003. Plaintiffs filed their Reply to New Matter on July 24, 2003, On October 24, 2003, Defendant filed a Motion for Partial Judgment on the Pleadings. Defendant contends that Plaintiiffs have not and cannot state a prima facie case of sexual discrimination/h.arassment or retaliation. Defendant does not address the Plaintiffs' age disGrimination claim, The parties timely filed the appropriate briefs in support of their respective positions. The parties argued the motion before this Court on February 4, 2004, 2 DISCUSSION Defendant filed a Motion for Partial Judgml~nt on the Pleadings pursuant to Rule 1034(a) of the Pennsylvania Rules of Civil Procedure. Judgment on the pleadings "should be granted only where the pleadings demonstrate that no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of law." Hammel'stein v. Lindsav, 440 Pa,Super. 350, 356 (1994), "Such a motion is in the nature of a demurrer; all of the opposing party's well pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him," Gallo v. J,C. Pennev Cas, Ins, Co" 328 Pa,Super. 267, 270 (1984), In ruling on such a motion, the court should consider only the pleadings themselves and any documents or exhibits properly attached to pleadings. Hammerstein, 440 Pa,Super. 350, 356. Moreover, "neither party can be deemed to have admitted either conclusions of law or unjustified inferences." Id. I. Doctrine of the Laws In their Brief in Opposition to Defendant's Motion for Partial Judgment on the Pleadings, Plaintiffs assert that Defendant's Motion is barred by the Doctrine of the Laws of the Case, The Plaintiffs contend that the court has already ruled on the issues raised in Defendant's Motion when it denied Defendant's Preliminary Objections. To illustrate their 3 claim, Plaintiffs cite to a Pennsylvania Supreme Court case addressing the doctrine of the laws, or "coordinate jurisdiction" rule, See Riccio v. American Reoublic Ins, Co., 550 Pa. 254 (1997). The Riccio Court explained that a "court involved in the later phasEls of a litigated matter should not reopen questions decided by another judge of the same court or by a higher court in the earlier phases of the rnatter." Riccio, 550 Pa, at 261 (citing Commonwealth v, Starr, 541 Pa, 564, 574 (1995)), However, the coordinate jurisdiction rule is not dispositive in the case at bar. The Riccio Court added that in "detEirmining whether the coordinate jurisdiction rule applies. . . [a] Court looks to where the rulings occurred in the context of the procedural posture of the case." Riccio, 550 Pa. at 261. Therefore, "[w]here the motions differ in kind, as preliminary objections differ from motions for judgment on the pleadings, which differ from motions for summary judgment, a judge ruling on a later motion is not precluded from granting relief although another judge has denied an earlier motion," (emphasis added) lQ., (citing Goldev v. Trustees of the University ofPennsvlvania, 544 Pa,150, 156-57 (1996)). Furthermore, as the Defendant points out in its Reply Brief, the Plaintiffs filed their Reply to New Matter subseque,nt to this court's ruling on Defendant's Preliminary Objections, The Reply to New Matter contains additional factual averments that are integral to thle evaluation of the Plaintiffs' case for purposes of a Motion for Judgment on the Pleadings, 4 For these reasons, the Defendant's Motion for Palrtial Judgment on the Pleadings is not barred by the coordinate jurisdicltion rule. II. Plaintiffs Fail to State a Prime Facie Gase for Sexually Hostile Environment Claim The Plaintiffs claim that Defendant created a sexually hostile work environment in violation of the Pennsylvania Human Relations Act. 43 PA, CONS. STAT. ANN. ~ 951 el eel. In support of their claim, Plaintiffs aver the following in their Complaint and Reply to New Matter: 1. Upon the promotion of Karen Christie to Executive Vice President, the "office environment become increasingly less friendly and hostile." (Complaint at 1f 36); 2, Ms, Christie and Ed Messner "developed an increasingly personal relationship." On a daily basis, they would leave together for long lunches and other longl breaks without leaving behind contact information, (Complaint at 1f 37); 3, 'There was occasional drinking during office hours" and occasionally Ms. Christie and Mr, Messner would dismiss the staff early. "Empty bottles of beer, wine, and liquor were in the conference room the next day." (Complaint at 1f 38); 4, The relationship between Ms, Christie and Mr. Messner was "increasingly personal rather than professional" and they "acted as if they were romantically involved." (Complaint at 1f 39); 5, Complaints to Mr. Messner about his relationship with Ms. Christie and her failure to adhere to Chamber policies were ignored. (Complaint at 1m 40-41); 6. "The relationship between Messner and Christie resulted in the failure of the office to function properly, and deprived the staff of the ability to perform the jobs as they wished." Complaint at 1f 42); 5 7. "The Defendant's misconduct in discharging Plaintiffs was an outrageous violation of Pennsylvania's Human Relations Act forbidding age discrimination, the creation of a sexually hostile work environment, and retaliation." (emphasis added) (Complaint at 1f 50); 8. "Messner's relationship with Christie generated a sexually hostile work environment adversely affecting all Plaintiffs," (Reply to New Matter at 1f 6); 9. "The sexually hostile work environment created by Messner's and Christie's relationship constitutes sex discrimination under applicable law..." (Reply to New Matter at 1f 11); 10. The personal relationship between Ed Messner and Karen Christie created a sexually hostile work environment, thus "gender was one apparent motivating falctor in creating the adverse employment conditions" to which each of the four Plaintiffs was subject. (Reply to New Matter at 1f1f 12-15); 11, "Mr. Messner favored Karen Christie because of her sex, which led to a sexually hostile environment adversely affecting both male and female employees." (Reply to New Matter at 1f 16); 12. Messner and Christie's relationship aff,ected the work environment and the ability of Plaintiffs to perform their jobs, (Reply to New Matter at 1f 18); 13. "Defendant, through its supervisory agl9nts and employees, acted in bad faith toward the Plaintiffs in violation of the Pennsylvania Human Relations Act." (R:eply to New Matter at 1f 22). Based upon a review of the pleadings in thElir entirety, these statements constitute the crux of Plaintiffs' sexuall'y hostile environment claim. A. Legal Standard/Elements A plaintiffs hostile environment claims are, "examined solely under 6 Title VII in light of the fact that the Pennsylvania Human Relations Act and Title VII are construed to be consistently interpreted," Kent v, Henderson, 77 F,Supp.2d 628, 631 n.1 (ED, Pa. 1999). Title VII makes it an unlawful employment practice to discriminate against an individual on the basis of the individual's race, color, religion, sex or national origin. Harris v, Forklift Svstems. Inc., 510 U.S. 17, 21 (1993). The lalw is designed to prevent disparate treatment of men and women in the workplace, including "requiring people to work in a discriminatorily hostile or abusive environment." Meritor SavinQs Bank. FSB v. Vinson, 477 U.S. 57, 64 (1986). The Third Circuit has provided a five-factor test for a successful prima facie case of a sexually hostile environment: (1) the employee suffered intentional discrimination because of his/her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff [subjective te,st]; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position [objective test]; and (5) the existencE~ of respondeat superior liability, Andrews v. Citv of Phila" 895 F,2d 1469, 1482 (3rd Cir. 1990). In determining the existence of a hostile environment, courts must look to the totality of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably 7 interferes with an employee's work performance." Harris, 510 U.S. at 23, When the workplace is permeated with "discriminatory intimidation, ridicule, and insult," then it is "sufficiently severe or pervasive to alter the conditions of the victim's employment and cn~ate an abusive working environment." Meritor, 477 U,S, at 65-67. Courts must ensure the "standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a general civility code." Faraaher v. City of Boca Raton, 524 U,S, 775, 788 (1998), B. The Plaintiffs Cannot Prove They We,re Discriminated Against Because Of Their Sex To succeed on a sexually hostile environment claim, a plaintiff must demonstrate that he/she suffered intentional discrimination because of his/her sex. Andrews, 895 F.2d at 1482. Title VII's prohibition of discrimination protects both sexes and nothing in Title VII "bars a claim of discrimination because of sex merely because this plaintiff and the defendant. . , are of the same sex." Oncale v. Sundowner Offshore Services, 523 U,S. 75,78-79 (1998). However, the critical issue in a Title VII analysis is "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed," Harris, 510 U,S. at 25 (Ginsburg, J., concurring). A plaintiff asserting a sexually hostile environment claim "must always prove that the conduct at issue was not merely tinged with 8 offensive sexual connotations, but actually constiituted discrimination because of sex." Oncale, 523 U,S. at 81. The Third Circuit has instructed lower courts that the "plaintiff has the burden of showing that her sex was a substantial factor in the discrimination and that if she had been a male, she would not have been treated in a similar manner" and vice versa, Ken1!, 77 F,Supp,2d at 635, Although sexual overtones are not required to show discrimination on the basis of plaintiff's sex, "the offending conduct must nonetheless be motivated by her sex," Id, Furthermore, the Third Circuit has addressl9d sexually hostile environment claims based on the presence of a consensual sexual relationship between a supervisor and a co-workElr. See Drinkwater v. Union Carbide Corporation, 904 F,2d 853 (3rd Cir, 1990), The Drinkwater court noted that in these cases "it is the environment, not the relationship, that is actionable," Id, at 861, Yet, whether gend9r is a motivating factor remains a key inquiry in these hostile environment claims because "the theoretical basis for the kind of environmental claim alleged here is that the sexual relationship impresses the workplace with such a cast that the plaintiff is made to feel that she is judged only by her sexuality." Id, at 861, n.15, In Drinkwater, the plaintiff complained that 81 relationship between her co-worker and supervisor made the work environment "oppressive and 9 intolerable." Id, at 861-62, Despite this allegation, plaintiffs claim failed because there was no evidence that the co-worker and supervisor flaunted the romantic nature of the relationship, nor was there evidence that these kinds of romantic relationships were prevalent at the workplace. Id. at 862. The court added that a sexually hostile environment may have existed if "sexual discourse displaced standard procedure" and the plaintiff was prevented "from working in an environment in which she could be evaluated on grounds other than her sexuality." If!, Using these principles, several courts have dismissed claims of sexually hostile environments because the conduct at issue was not motivated by plaintiffs gender. See e.g. Hiester v. Fischer, 113 F.Supp.2d 742 (E.D, Pa, 2000)1 (insults and ill treatment by police cadet academy instructors were experienced equally by female and male cadets and the plaintiff failed to raise a genuine issue of material fact that her sex was a "substantial factor" in her treatment or that "if plaintiff had been a male, she would not have been treated in a similar manner.);: Shramban v, Aetna, 262 F.Supp.2d 531 (E.D, Pa, 2003) (although "OffElnsive, disparaging, unprofessional and in poor taste," personal questions about Plaintiffs boyfriend/husband, remarks about Plaintiffs hair and mimicking comments 1 The plaintiff in Hiester brought her action under ~ 1983. However, the determination of whether a plaintiff faced discrimination because of her sex is identical under either Title VII or ~ 1983. HiElster, 113 F.Supp.2d at 747, n.4. 10 about Plaintiff's accent were not motivated by Plaintiff's gender); McCauley v. White, 2002 WL 1022037, *3 (ED. Pa, 2002) (supervisor's "unprofessional and inappropriate" conduct towards plaintiff, including forcing Plaintiff's hand near groin area and making comments about Plaintiff's sexual orientation, did not occur because of plaintiff's gender); Kent v. Henderson, 77 F,Supp,2d 628 (ED. Pa. '1999) (plaintiff's coworker left clues that he had been present at plaintiff's workplace without plaintiff's knowledge and made an angry face at plaintiff; although the plaintiff could prove harassment by her co-worker, plaintiff could not show that she was harassed because she was a woman). Courts have reached the opposite result in sexually hostile environment cases where the conduct directed at plaintiff was clearly motivated by the plaintiff's gender, See e.g. Flick v. Aurora Eauioment Comoanv. Inc., 2004 WL 220859 (ED, Pa, 2004) (male co-workers addressed plaintiff as a "fucking bitch," plaintiff was told by co-workers she needed to prove herself because she was a woman and when plaintiff complained to her supervisor about poor treatment she was told it "was a man's world,"); Endres v. Technealas. Inc" 139 F.Supp.2d 624 (ED. Pa. 2001) (co-worker's disparaging comments about fl9male co-workers and his history of negative conduct towards women constituted a material issue that conduct towards female plaintiff was motivated by gender); Anderson v, Deluxe Homes of Pa. Inc" 131 F.Supp.2d 637 (M,D, Pa, 2001) (a 11 \ . reasonable jury could find that if plaintiff had been male, she would not have been subjected to co-worker's behavior, including co-worker's comments about the size of his genitals compared to plaintiff's boyfriends, and co-workers' placing his hands on plaintiff's breast, waist and leg), A district court in New York recently confronted a case factually similar to the case at bar, See Gale v. Primedia. Inc., 2001 WL 1537692 (S.D,N.Y, 2001), A plaintiff brought a retaliatory discharge claim against her employer for complaints she made about a romantic relationship between her male supervisor and female co-worker. In evaluating whether the plaintiff had a good faith, reasonable belief that the challenged conduct violated the law for purposes of a retaliation claim, the court stated that it was "clear that the plaintiff could not have sustainEld a hostile work environment claim." Id. at *2, The conduct at issue consisted of instances where the plaintiff witnessed hugging and kissing between the supervisor and co-worker, the supervisor heaped generous praise on the co-worker, the supervisor caressed the co-worker's stomach, ,and the couple took a separate car after a working lunch with plaintiff so they could be alone. Id. at *3. The court concluded that plaintiff could not sustain a sexually hostile environment claim because the actionable conduct was not made on the basis of gender and the conduct did not rise to the necessary level of pervasiveness or severity. Id, The court reasoned that the plaintiff's exposure to the relationship was not based on her ~lender because "[alII 12 employees.. ,were equally subjected to this personal relationship, Employees exposed to the intimate relationship of a supervisor are not discriminated against because of their gender, but rather are discriminated against because their supervisor prefers his paramour." Id, at *3-4. Similarly, the Plaintiffs in the case at bar halve not averred facts to sustain an argument that Defendant's conduct wals motivated by the Plaintiffs' genders. Plaintiffs contend that Ms, Christie and Mr. Messner's alleged personal relationship adversely affected all four Plaintiffs and the environment adversely affected "both male and female employees." (Reply at 11 16). Plaintiffs pled that Ms. Christie and Mr. Messner developed a personal relationship, took long lunches on a regular basis without leaving a forwarding number, occasionally dismissed the staff early and that there were a few instances of drinking during office hours. None of this behavior was motivated by the gender of either the female or male Plaintiffs. Thus, the two male and two female Plaintiffs were all equally subjected to Ms, Christie and Mr, Messner's alleged relationship. Plaintiffs cannot make the critical argument for sexually hostile environment cases that "members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Harris, 510 U.S. at 25. The Plaintiffs simply cannot "prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination 13 because of sex," Oncale, 523 U.S. at 81. In light of the principles and case law set forth in the preceding paragraphs, the conduct described by Plaintiffs cannot meet the first element of intentional gender discrimination under a sexually hostile environment claim. C. Plaintiffs Fail to Provide Facts that SlUpport a Finding of a Pervasive and Regular Harassment The second-prong of a sexually hostile envlironment claim requires a plaintiff to show that the conduct/discrimination at issue was pervasive and regular, Andrews, 895 F,2d at 1482, In addressing hostile environment claims, the U.S. Supreme Court has "made it clealr that conduct must be extreme to amount to a change in the terms and conditions of employment." Faraaher, 524 U.S. at 788. A plainltiff "cannot rely upon casual, isolated or sporadic incidents to support her claim of hostile work environment sexual harassment." LaRose v. Philadelohia Newsoaoers. Inc., 21 F.Supp.2d 492, 499 (E.D. Pa. 1998), Thus, Title VII's purview does not extend to all workplace complaints, "even where the conduct may be crass and unwarranted," Saidu-Kamara v. Parkwav Corooration, 155 F.Supp.2d 436 (E.D. Pa. 2001). There are several instances of courts dismissing sexually hostile environment claims for failing to meet the pervasive and regular element. See e.g. Shesko v. Citv of Coatesville, 292 F,Supp.:2d 719 (E.D, Pa. 2003) (conduct not sufficiently pervasive or regular to establish a claim for a 14 sexually hostile environment where co-workers rElferred to plaintiff as a "bitch" or "cunt" behind her back, plaintiff found pornographic material in the visor of her patrol car, co-workers, supervisors occasionally referred to plaintiff as a "hysterical female" and supervisor doscribed to plaintiff sexually transmitted diseases in plaintiffs age group); Lawler v. Norristown State Hospital, 2003 WL 21904744 (ED, Pa. 2003) (conduct not pervasive or regular when plaintiff complained of two incidents of supervisor rubbing plaintiffs back and making suggestive comments); Lulis v. Barnhart, 252 F.Supp.2d 172 (E.D, Pa. 2003) (conduct by male plaintiffs female supervisor over a seventeen-month period, including four instances of "brushing" or "touching," three specific instances of "staring" or looking at the Plaintiff in a suggestive manner, four instances of sitting too closely or following Plaintiff, three incidents where Plaintiff felt he was being propositioned in an inappropriate sexual manner by the supervisor, and one incident where the supervisor showed the plaintiff "personal pictures" of herself did not constitute conduct pervasive or severe enough for a sexually hostile environment claim); Saidu-Kamara v, Parkwav Corp., 155 F.Supp,2d 436 (E.D, Pa. 2001) (conduct not sufficiently severe when co- worker touched plaintiffs breasts and buttocks, removed a bottle of wine from his pants and propositioned plaintiff to join him at a hotel, commented on her appearance, and made annoying or harassing comments); Gautnev v, Amerioas Propane, Inc.. 107 F.Supp,2d 634 (ED. Pa. 2000) 15 (allegations that plaintiff was subjected to "unprofessional, offensive, and callow" conduct and comments, including discussions concerning the size of a male co-worker's genitals and his "escapades with other women" and comments "that men did not like aggressive women, that [plaintiff] was only using 1/3 of her assets and that she should dress in a skirt and heels," did not amount to severe and pervasive harassment); Bishop v. National R.R. Passenaer Coro.. 66 F.Supp.2d 650 (E.D.Pa. 19919) (dismissing Title VII conduct "consisting merely of staring, leering and 'stud muffin' comments, with no physical touching or threats and no sexual overtones"); Pittman v. Continental Airlines. 35 F,Supp.2d 434 (ED, Pa, 1999) (alleged conduct not sufficiently severe where plaintiff "occasionally encountered individuals who inquired about her personal life and extended conversations about relationships to a 'graphic' level"); LaRose v. Philadelphia Newspapers. Inc., 21 F.Supp.2d 492 (E.D.Pa.1998) (allegations not sufficiently severe where supervisor raised his hand at plaintiff, followl~d her into an office, denied her overtime and training, and stood too close to her); McGraw v, Wveth-Averst Labs. Inc., 1997 WL 799437 (E.D. Per. 1997) (when her supervisor made several requests for a date with plaintiff, kissed plaintiff without her consent, "forcing his tongue into her mouth" and touched her face, this was not severe enough to create a hostile work environment); Cooper-Nicholas v. City of Chester, 1997 WL 799443 (E.D. Pa. 1997) (work environment not sufficiently hostile where plaintiff's supervisor 16 consistently made vulgar and offensive commenlts at office gatherings, which included referring to employees as "crotch watchers" and "whoremongers," telling an employee that his secretary was "doing the wild thing" at lunch and telling another employee that "she just had to have my body"); KonstantoDoulos v. Westvaco COrD., 112 F,3d 710 (3d Cir.1997) (finding that a hostile or abusive working environment did not exist where plaintiff was required to work in the proximity of employees who had previously harassed her and was subjected to rude gestures, "squinting stares," and shaking fists), The courts have found that plaintiffs did meet the requisite element of pervasiveness and severity in several recent decisions, In a March 2004 decision, a district court found that the following behaviors were sufficiently pervasive and severe to survive summary judgment: numerous instances of vulgar and lewd language at the job site, specific references to sexual acts including a comment by one co-wor~;er that she "needed to go home to get a prick in me to loosen myself up," questions to the plaintiff about her preferred sexual acts, references to the plaintiff as a lesbian, an invitation to the plaintiff to participate in a sexual act with a manager and his wife and a manager, touching the plaintiff on her buttocks, pushing his body against the plaintiffs and dropping the plaintiff's nametag down her shirt. EEOC v. Rose Casual Dinina, 2004 WL 614806, *4 (E.D. Pa. 2004). See also Hawk v. Americold Loaistics. LLC, 2003 WL 929221 (E.D. Pa. 17 2003) (conduct pervasive and severe enough when plaintiff's direct supervisor engaged in a pattern of sexual harassment over an eight-month period. This pattern included unwelcome phone calls to plaintiff's home and pager, statements to plaintiff that he wanted to have sex with her in his chair, grabbing the plaintiff and pulling her to him and shoving her against a wall while indicating his desire to have sex with her), The Plaintiffs in this case cannot sustain the pervasive and regular element of a sexually hostile environment claim. When the workplace is permeated with "discriminatory intimidation, ridicule, and insult," then it is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Meritor,477 U.S. at 65-67, An abusive working environment is one "so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers." -'d. at 66. The U,S, Supreme Court has "made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment." Faraaher, 524 U.S, at 788. The aforementioned cases demonstralte the high level of pervasiveness and severity required to sustain a claim of a sexually hostile working environment. In the present case, Plaintiffs averred that Ms. Christie and Mr, Messner developed a personal relationship, took long lunches on a regular basis without leaving a forwarding number, occasionally dismissed the 18 staff early and that there were a few instances of driinking during office hours. At worst, this conduct may have been unprofessional, but no reasonable juror could conclude that the conduct was "so severe or pervasive that it alters the conditions of [Plaintiffs'] employment and thus create[d] an abusive environment." Title VII does not protect a plaintiff who experiences conduct that is merely offensive or annoying. Pittman, 35 F.Supp.2d at 442, Therefore, courts must ensure the "standards for judging hostility are sufficiently demanding to ensure that Title VII does not becomE~ a general civility code." Faraaher, 524 U.S. at 788, Accepting all of Plaintiffs' allegations as true for purposes of a motion for partial judgment on the pleadings, the Plaintiffs do not meet this standard as a matter of law. III. Plaintiffs Fail to State A Prima Facie Case of Retaliation To state a prima facie case of retaliation, the plaintiff must show: (1) (s)he was engaged in a protected activity; (2) (s)he was discharged subsequent to or contemporaneously with such activity; and (3) there is a causal link between the protected activity and the adverse action. Quiroaa v, Hasbro, Inc., 934 F.2d 497, 501 (3rd Cir, 1991). Although in a Title VII retaliation claim a plaintiff need not establish that the opposed conduct was in fact a violation of Title VII, (s)he must show "that (s)he had a reasonable belief that her employer was engaged in an unlawful employment practice." Drinkwater, 904 F,2d at 865. See also Gale, 2001 WL 1537692 at *2 19 ("[P]laintiff must only demonstrate a good faith, rE~asonable belief that the underlying challenged actions of the employer violated the law. ") Accordingly, a retaliation claim can survive indep1endently of a sexual harassmenUhostile environment claim, DrinkwatE~, 904 F.2d at 865. For purposes of establishing a prima facie case of retaliation, merely complaining generally about unfair treatment does not constitute a protected activity. Gautnev v. Amerioas, 107 F.Supp.2d 634 (E.D. Pa. 2000). The Gautney court found that plaintiff "complained in general terms that she thought she was being treated differently" and her "vague complaints" could not reasonably be construed as complaints of gender or sex discrimination. Gautnev, 107 F,Supp.2d at 6413, "A mere reference to being treated differently or unfairly followed by the denial of any differential treatment is insufficient to establish that [plaintiff] engaged in a protected activity." Id, In the present case, Plaintiffs contend only that they complained to Mr. Messner about his relationship with Ms. Christie, and that Ms. Christie failed to adhere to Chamber policies. (Complaint at mr 40-41) The Plaintiffs do not contend that they were discriminated against because of their sex, a critical component of a Title VII complaint. Like the plaintiff in Gautnev. the Plaintiffs here did not engage in a protE~cted activity under Title VII because they made only general complaints of the work environment, not complaints of gender or sex discrimination. 20 Furthermore, Plaintiffs could not have reasonably believed they were engaged in a protected activity in the case at bar. As referenced earlier in this opinion, the pivotal issue in a sexual discrimination claim under Title VII is that an individual is being treated differently because of his/her gender. The male and female Plaintiffs were equally exposed to the alleged relationship between Mr, Messner and Ms. Christie. "Employees exposed to the intimate relationship of a supervisor are not discriminated against because of their gender, but rather are discriminated against because their supervisor prefers his paramour." ~;ale, 2001 WL 1537692 at *3-4, See also Krvskie v. Schott Glass Technoloaies. Inc., 426 Pa.Super, 105 (1993) (favoritism for paramour alone does not give rise to a claim of gender discrimination), Plaintiffs cannot make a prima facie case of retaliation under Title VII. IV. Conclusion For the foregoing reasons, Defendant's Motion for Partial Judgment on the Pleadings is GRANTED, Plaintiffs' claims for sexually hostile environment and retaliation are DISMISSED. 21 .,.,.J.. -4 . . IN THE COURT OF COMMOM PLEAS OF CUMBERLAND COUNTY. PENNSYL VANIA MARY A. FANUCCI, BRYCE H. BROWN AUDREY A. HANNA and CARL A. WINFIELD, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs, v. : NO. 02-6005 WEST SHORE CHAMBER OF COMMERCE, CIVIL ACTION - LAW Defendants PRAECIPE TO DISMISS WITH PREJUDICE TO: PROTHONOTARY OF CUMBERLAND COUNTY Please mark the above-captioned matter and all claims of Plaintiffs against Defendant West Shore Chamber of Commerce set forth therein SETTLED and DISMISSED, for all purposes, with prejudice. oX qn Q7l.-JJt J 0 . Melillo, Esquire gino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 (717) 238-3838 P \'rn. ~ic Ji . Lashay, Esquire , Klett Rooney Lieber & Schorling 17 North Second Street, 15th Floor Harrisburg, P A 17101 (717) 231-7700 Attorney for Plaintiffs Mary Fanucci, Audrey Hanna, Bryce Brown and Carl Winfield Attorneys for Defendant West Shore Chamber of Commerce EXHIBIT 1 I'IM' II \1 II II II II II I' Ii ;1 II 1\ II I CERTIFICATE OF SERVICE AND NOW, this JL't4cray of December, 2005, I, Kathy A. Toney, an employee of the law firm of Angino & Rovner, P.c., hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing same in the first class, United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Jill M. Lashay, Esquire Allen C. Warshaw, Esquire Klett Rooney Lieber & Schorling 240 North Third Street, Suite 600 Harrisburg, PA 17101 ~a<'7-? ~ley --- -. ---.----- ~.,..., (..~ -