Smith v. RB Distribution, Inc.

515 F.Supp.3d 311

Shanika SMITH, Plaintiff,

v.RB DISTRIBUTION, INC. et al., Defendants.

CIVIL ACTION No. 20-00900

United States District Court, E.D. Pennsylvania.

Filed January 25, 2021

Susan C. Keesler, Derek Smith Law Group PLLC, Philadelphia, PA, for Plaintiff.

Kevin L. Golden, Buchanan Ingersoll & Rooney, PC, Philadelphia, PA, for Defendants RB Distribution, Inc., Dorman Products, Inc., Shirley Chernyk, Ed Ivoc, Gerald Bumpers.

Brian W. Waerig, Jennifer Abrams, Susanin, Widman & Brennan, P.C., Berwyn, PA, for Defendant Jose Rosario.

MEMORANDUM

McHUGH, United States District Judge

This matter highlights a conceptual challenge inherent in claims asserting intentional infliction of emotional distress ("IIED"), particularly where the claimant depends upon a series of encounters over a period of time. This "highly circumscribed" tort requires conduct to pass the boundary of civilized behavior into the "extreme and outrageous" before it can be actionable.¹ Many decisions have discussed IIED, but courts rarely find that the facts alleged meet this rigorous standard.² This dynamic places plaintiffs—and courts alike—in a dilemma. If a plaintiff files an IIED claim too early, her factual allegations might not suffice to state a claim under this demanding measure. But a plaintiff who waits until all relevant conduct has occurred runs the risk of being barred by the statute of limitations.

This is one such case. Shanika Smith ("Plaintiff") has alleged that her co-worker, Jose Rosario ("Defendant"), sexually harassed her from the spring of 2017 until his termination from the company in June 2018. Mr. Rosario made graphic, sexualized statements to Ms. Smith and attempted to grope her vagina on one occasion. After Ms. Smith filed a complaint against Defendant, she contends that he persisted in his harassment, offering Ms. Smith money to perform sexual favors. And in retaliation for her complaint, Mr. Rosario purportedly enlisted another co-worker to help him sabotage Ms. Smith's work performance. Taken together, such conduct could be viewed as extreme and outrageous by an average person, and I ultimately conclude that Ms. Smith has stated a claim for intentional infliction of emotional distress. Admittedly, some of the events giving rise to the claim occurred more than two years before Plaintiff filed suit. Nonetheless, for the reasons that follow, I further conclude that Ms. Smith's claim is timely, as she filed within two years of the point at which Mr. Rosario's harassment ended.

I. Facts and Procedural Posture

The facts alleged in this case are set out at length in an earlier memorandum opinion, see Mem. Op., ECF No. 23, and I do not repeat them in full here. When the pleadings are viewed in the light most favorable to Ms. Smith, she has alleged that Mr. Rosario harassed her continuously from the spring of 2017, when they were both converted to permanent "return processor" positions at the company, up until his termination in June 2018. See First Am. Compl. ¶¶ 36, 82, ECF No. 11. Plaintiff describes a number of explicit, unwelcome, and sexualized comments, which include Rosario telling her that he was aroused by the "vagina print from [her jeans];" that she "[had] a really fat ass;" that he would treat her like a queen if she were his; that she was making him hard; as well as fantasizing about the things he would do to her if she gave him a "chance." Id. ¶¶ 39, 40, 46, 47, 67. She also claims that, in the fall of 2018, Defendant placed his hand on Smith's thigh and attempted to grope her vagina, saying "[f]uck, that pussy looks fat, Mommy." Id. ¶ 49.

Ms. Smith has further alleged that, after she reported Mr. Rosario to human resources in December 2017, Mr. Rosario and his friend Sophia, a male co-worker at the company, attempted to sabotage her performance metrics by providing her with oversized car parts, which Ms. Smith was then charged with inspecting. Id. ¶¶ 70, 71. Ms. Smith repeatedly rejected Mr. Rosario's advances and ultimately filed three complaints against him. Id. ¶¶ 52, 74, 81. Finally, in June 2018, their employer terminated Mr. Rosario, presumably due to his harassment of Ms. Smith. Id. ¶ 82.

Ms. Smith filed her complaint in federal district court on February 18, 2020. See Compl., ECF No. 1. Her claims against Defendant include discrimination under the Pennsylvania Human Relations Act ("PHRA"), retaliation under the PHRA, aiding and abetting under the PHRA, discrimination under the Philadelphia Fair Practices Ordinance ("PFPO"), retaliation under the PFPO, aiding and abetting under the PFPO, intentional infliction of emotional distress, and assault and battery. See First Am. Compl. ¶¶ 160, 164, 167, 170, 174, 178, 182, 199. This Court entered a default against Mr. Rosario on May 23, 2020. See ECF No. 8. Mr. Rosario subsequently retained counsel, and I granted his motion to set aside the default. See ECF No. 22. Plaintiff has consented to the dismissal of all of the counts against Defendant, save her claims for IIED and declaratory relief. See Pl.’s Resp. Opp. 1–2, ECF No. 31.

II. Standard of Review

Within the Third Circuit, motions to dismiss under Fed. R. Civ. P. 12(b)(6) are governed by the well-established standard set forth in Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009).

III. Discussion

A. Intentional Infliction of Emotional Distress

To trigger liability for intentional infliction of emotional distress, "(1) the conduct [of the defendant] must be extreme and outrageous; (2) it must be intentional or reckless; (3) it must cause emotional distress; [and] (4) the distress must be severe." Hoy v. Angelone , 456 Pa.Super. 596, 691 A.2d 476, 482 (1997), aff'd 554 Pa. 134, 720 A.2d 745 (1998). Extreme and outrageous conduct constitutes behavior "beyond all possible bounds of decency," "atrocious," and "utterly intolerable in a civilized community." Id. at 151 (citing Restatement (Second) of Torts § 46, cmt. d (1965)).³

1. Statute of Limitations

Defendant first argues that Plaintiff "has alleged insufficient timely allegations to support the intentional infliction of distress claims against Mr. Rosario." Def.’s Mem. Supp. Mot. Dismiss 4, ECF No. 25-2 ("Def.’s Mem"). As a general matter, a court may grant a Fed. R. Civ. P. 12(b)(6) motion to dismiss on statute of limitations grounds where the complaint is facially noncompliant with the limitations period and the defendant affirmatively raises the defense. See Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1385 n.1 (3d Cir. 1994). The statute of limitations for tort claims in Pennsylvania is two years. 42 Pa. Cons. Stat. Ann. § 5524(7) (Purdon Supp. 1997). The Supreme Court of Pennsylvania has held that the limitations period begins to run when a cause of action accrues, which does not occur until "the plaintiff could have first maintained the action to a successful conclusion." Fine v. Checcio , 582 Pa. 253, 266, 870 A.2d 850 (2005). This standard for accrual comports with federal practice generally. See Wallace v. Kato , 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (observing "the standard rule that accrual occurs when the plaintiff has a complete and present cause of action") (internal punctuation omitted).

The parties advance divergent methods of calculating the statute of limitations, neither of which will suffice. Mr. Rosario's analysis does not explicitly indicate when Ms. Smith could have first maintained her cause of action; instead, he directs the Court to confine its review to events in the two-years preceding the filing of her complaint. See Def.’s Mem. 4–5. This would effectively constrain the analysis to conduct that took place after February 18, 2018.⁴ Conversely, Ms. Smith claims, without citation to legal authority, that this Court must consider the entirety of the alleged harassment because she has "pled continuing violations by Defendant Rosario."

Pls. Resp. Opp'n 3, ECF No. 31. The difficulty there is that Plaintiff invokes federal employment law, and it is not clear that Pennsylvania courts have formally imported the "continuing violation" doctrine in evaluating claims for emotional distress. See Shank v. Se. Sch. Dist. , No. 14-1811, 2015 WL 13861964, at *9–10 (M.D. Pa. Sept. 22, 2015) (expressing doubt that the continuing violation exception applies to Pennsylvania IIED claims).

Rather, under Pennsylvania law, I must identify the point at which Plaintiff's factual allegations sufficed to state a claim for IIED such that she could have "maintained the action to a successful conclusion." Fine, 582 Pa. at 266, 870 A.2d 850. Federal courts have employed differing approaches. One district court concluded that "the statute of limitations for intentional infliction of emotional distress in Pennsylvania is two years from the date of the last conduct. " Robinson v. Consol. Corp. , 668 F. Supp. 2d 678, 691 (M.D. Pa. 2009) (emphasis added). More commonly, however, courts have compared the elements of the claim with the allegations to determine at what point the elements were met. See, e.g. , Sanders v. Pennsylvania's State Sys. of Higher Educ. , No. 18-1423, 2019 WL 3824230, at *3 (M.D. Pa. Aug. 14, 2019) (setting accrual at the point of plaintiff's termination of employment); Glickstein v. Neshaminy Sch. Dist. , No. 96-6236, 1997 WL 660636, at *14 (E.D. Pa. Oct. 22, 1997) (stating that the limitations "period must be measured from the date of the last discrete incident of harassment accompanied by retaliation").

Applying the elements of a claim approach, an IIED claim that is founded upon sexual harassment will accrue when the defendant's intentional or reckless conduct rises to the level of "extreme and outrageous" behavior and causes severe emotional distress. The burden of demonstrating "outrageous" conduct is substantial. Harassment may only suffice when it is viewed cumulatively, and some courts have therefore included harassing conduct that precedes the two-year limitations period in their analysis.

One such...