ALLENTOWN – A federal judge has denied Lehigh County and a senior care facility's motion to dismiss to a recreational aide’s hostile work environment and wrongful termination case.
U.S. District Court for the Eastern District of Pennsylvania Judge Joseph F. Leeson Jr. issued an opinion on Feb. 19, in the lawsuit brought by plaintiff Nancy Hills against Lehigh County and Cedarbrook Senior Care and Rehabilitation.
Hills was hired by the defendants in 2004 to work as a Therapeutic Recreational Aide. During her employment with defendants, there was a male resident at the facility who was known to sexually assault female employees and Hills herself was assaulted repeatedly by this resident.
“Specifically, she stated beginning in 2017, the resident groped Hills’ breast many times while she worked. A separate incident involved the resident attempting to take Hills’ shirt off while she tended to him. In yet another incident, on or about March 20, 2019, the resident groped Hills in her pelvic region with his hand. Hills reported this incident to supervisors the same day,” Leeson said.
“Following that report, Hills complained about these incidents to numerous nurses and supervisors at the facility. In addition, other females at the facility experienced sexual assaults and harassment by this resident as well. Hills repeatedly rebuffed the resident’s behavior, telling him to stop each time. When Hills reported the behavior to management, she states that they were already aware of the resident’s behavior.”
On May 16, 2019, Hills says she again experienced harassment when the resident shouted sexual remarks in her vicinity. The following day, Hills spoke with a male co-worker, Angel Rosa, who she states was encouraging the resident’s lewd conduct, and asked him instead to dissuade the sexual behavior.
On May 20, 2019, when Rosa brought the resident near Hills’ work area, Hills asked Rosa to take the resident somewhere else. Two days later, Hills was suspended and two days after that, Hills was terminated on May 24, 2019.
Hills claims that her termination was on account of her sex and in retaliation for her complaints about the resident’s sexual misconduct. Hills brought suit under claims for harassment/hostile work environment in Violation of Title VII, retaliatory discharge in violation of Title VII and wrongful discharge/termination based on sex in violation of Title VII.
The defendants first moved to dismiss Hills’ sex-based discrimination claim in Count III, arguing that the claim is duplicative of Hills’ other claims, but Leeson denied this attempt.
“Defendants argue that Hills’ claim of sex-based discrimination should be dismissed because it is merely duplicative of her claim for retaliation. This Court disagrees. The Third Circuit has stated that rebuffing sexual advances may form the basis for a retaliation claim and may also be the predicate for discrimination based on sex,” Leeson said.
“By this standard, where an employer takes adverse action against an employee who complained of harassment based on that employee’s sex, and that employer would not take similar action against an employee of the opposite sex, the employee who suffered the adverse action may bring claims of both retaliation and sex discrimination. That is what Hills alleges here. She alleges that she was terminated for complaining of the resident’s sexual conduct because she is female, and Rosa was not terminated for encouraging the resident’s sexual behavior because he is male.”
Though the defendants moved to dismiss Cedarbrook from the matter citing case law regarding Section 1983 litigation and that the facility is a municipal arm, but Leeson countered this charge.
“This is not a Section 1983 case; this is a Title VII matter. The inquiry into a proper defendant in a Title VII case solely involves whether the putative defendant is an employer as the term is used within Title VII. Here, Hills alleges that both defendants were her ‘employer.’ Defendants do not challenge the sufficiency of these allegations. Rather, defendants attempt to introduce evidence not yet of record in this case, namely the organizational relationship between the County and Cedarbrook. On a motion to dismiss, the Court may only consider the four corners of the complaint and documents appropriately appended thereto,” Leeson stated.
“Defendants’ motion to dismiss is denied in its entirety. At this stage of the litigation, Hills’ claim of sex-based discrimination survives a motion to dismiss. Additionally, Hills has alleged sufficient facts that Cedarbrook is an appropriate defendant in this action, at least at this early stage in the litigation.”
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-03089
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com