ISABELLA LEAVINES v. OLLIE‘S BARGAIN OUTLET, INC. and LORENZO DUFFEY
Civil Action No. 2:24-932
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
June 10, 2025
Magistrate Judge Dodge
Plaintiff Isabella Leavines brings this action against her former employer, Ollie‘s Bargain Outlet, Inc. (“Ollie‘s“), and Lorenzo Duffey (“Duffey“), her former manager at Ollie‘s, under several civil rights statutes, alleging that she was subjected to discrimination on the basis of her gender and disability and to retaliation. She also alleges that she was subjected to quid pro quo sexual harassment, a hostile work environment, sexual battery, sexual assault and the intentional infliction of emotional distress.
Pending before the Court is Defendants’ partial motion to dismiss, in which they seek dismissal of five of the ten claims asserted by Plaintiff in her Complaint. For the reasons that follow, the motion will be granted in part and denied in part.1
I. Relevant Procedural History
Plaintiff commenced this action on June 27, 2024 and later filed an Amended Complaint on November 12, 2024 (ECF No. 11). Federal question jurisdiction is based upon the federal civil rights claims asserted in the Complaint,
On December 31, 2024, Defendants filed a partial motion to dismiss (ECF No. 14) which has been fully briefed (ECF Nos. 15, 20.) In their motion, they seek dismissal of Counts II, IV, VI, VII and X.2
II. Factual Background
Plaintiff began employment with Ollie‘s on September 22, 2023 at a location in Washington, Pennsylvania. Duffey, who was her manager, immediately began flirting with her. Plaintiff has a neurological condition that affects her ability to assess certain social situations and discern the intent of others. When she told her mother, Brenda Leavines, about Duffey‘s conduct, Brenda went to Ollie‘s and informed Duffey of Plaintiff‘s condition and warned him against taking advantage of her. (Am. Compl. ¶¶ 10-18.)
Around the same time, Plaintiff was being sexually harassed by Glenn, a male coworker, who told her that he wanted to “give her a good time” and suggested that he had “something” she could use in exchange. Plaintiff wrote a letter documenting Glenn‘s conduct and gave it to Duffey and a manager from a different Ollie‘s location, but nothing was done. (Id. ¶¶ 25-28.)
On or about December 5, 2023, Duffey called Plaintiff and offered her shifts on December 6 and 8. He also asked her to add him on Snapchat, after which he sent her a message offering her additional work hours if she performed oral sex on him, writing “if you do this sexual favor for me, I will give you more hours.” On December 6, Plaintiff worked her shift at Ollie‘s. At the end of her shift, Duffey took her to a backroom, where there were no cameras, and Plaintiff performed oral sex on him. Plaintiff states she did so because Duffey took advantage of her neurological condition and because of his power over her. (Id. ¶¶ 20-34.)
On December 8, Plaintiff worked her shift and a mandatory shift on December 10. When she asked Duffey about being scheduled for more work hours, he said she would “have to open up her availability” to do that, but she did not understand what he meant. The last day she worked at Ollie‘s was on December 10, 2023. Over the next two weeks, she continued to communicate with Duffey via Snapchat, because she thought she might be scheduled for more hours. During that time, she agreed to Duffey‘s request that she send him nude photos via Snapchat, but she did not receive more work hours. (Id. ¶¶ 35-43.)
Plaintiff filed two separate charges of discrimination with both the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Relations Commission (PHRC). On March 5, 2024, she filed a charge alleging sexual discrimination and retaliation, for which she received a Right to Sue Letter on April 3, 2024. Later, on August 30, 2024, she filed a charge alleging disability discrimination and retaliation, for which she received a Right to Sue Letter on September 13, 2024. (Id. ¶¶ 46-49 & Exs. A-D.)
III. Standard of Review
Under
In ruling on a
Defendants attached to their motion a document they call “Employment Offer and New Store Hiring Notice,” to support their contention that Plaintiff was hired only as a temporary employee (ECF No. 15 Ex. A). However, Plaintiff‘s claims are not “based on” this notice4 and she does not consent to its authenticity. (ECF No. 20 at 9.) Therefore, it will not be considered in connection with the motion to dismiss.5
A. Quid Pro Quo Sexual Harassment Claim (Count II)
In Count II, Plaintiff alleges a claim of quid pro quo sexual harassment based on Duffey‘s actions. Defendants move to dismiss this claim on the ground that she fails to allege an adverse employment action related to the alleged harassment.
“Title VII forbids actions taken on the basis of sex that ‘discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.‘” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (quoting
With respect to a quid pro quo sexual harassment claim, the Third Circuit Court of Appeals has held that:
[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute [quid pro quo] sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual‘s employment [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. . . .
Bonenberger v. Plymouth Twp., 132 F.3d 20, 28 (3d Cir. 1997) (citation omitted). A plaintiff must “demonstrate either that she submitted to the sexual advances of her alleged harasser or suffered a tangible employment action as a result of her refusal to submit to those sexual
various forms of discrimination in the workplace.
“To withstand a
In Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d 416, 427 (3d Cir. 2020), the Third Circuit held that a plaintiff stated a claim for a quid pro quo sexual harassment theory based on allegations that
Starnes alleged Doerr forced her to engage in sexual relations, shared pornography with her, and requested she send him videos of herself performing lewd acts. She accused Doerr of flirting with her in an attempt to restart sexual relations. Starnes also alleged that their sexual encounters were considered a “business relationship,” that Doerr had discussed using his position to help her get hired in Butler County before coercing her to engage in sexual relations, and that she felt compelled to acquiesce to his demands because of his position as her boss. And after they stopped having sex, Starnes alleged that she was denied many terms and conditions of her employment.
The Complaint alleges that Plaintiff was getting fewer work hours and complained to Duffey. Thereafter, Duffey, her manager, said he would give her more work hours in exchange for oral sex. Plaintiff complied in part because of Duffey‘s “power over her.” Subsequently, when she asked Duffey about being scheduled for more work hours, he said she would “have to open up her availability.” After her last day of work, she continued to communicate with Duffey because she thought she might be scheduled for more hours. During that time, she agreed to Duffey‘s request that she send him nude photos but she did not receive more work hours. Duffey fired her shortly thereafter. These allegations are sufficient to state a claim of quid pro quo
Defendants argue that Plaintiff alleges that she received additional shifts before the harassing conduct occurred. However, Plaintiff has also alleged that Duffey told her he would provide her additional shifts if she performed sexual acts on him and she did so. Whether he actually provided the shifts thereafter is irrelevant. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1297 (3d Cir. 1997) (“a quid pro quo violation occurs at the time when an employee is told that his or her compensation, etc. is dependent upon submission to unwelcome sexual advances. At that point, the employee has been subjected to discrimination because of sex.“), overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
Because Plaintiff has stated a claim for quid pro quo sexual harassment, Defendants’ motion to dismiss Count II will be denied.
B. Title VII Retaliation Claim (Count IV)
In Count IV, Plaintiff alleges a claim of retaliation in violation of Title VII. Defendants move to dismiss this claim on the ground that she has failed to allege a causal nexus between any protected activity and an adverse employment action.
Discrimination against an individual who has opposed a practice prohibited by Title VII or who has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the statute is actionable conduct.
The Third Circuit has stated that in order to establish a causal connection between any protected activity and an adverse employment action,
a plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link. See Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir.1997). In the absence of that proof the plaintiff must show that from the “evidence gleaned from the record as a whole” the trier of the fact should infer causation. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000).
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). In order to defeat a motion to dismiss, however, it is sufficient, but not necessary, to allege a prima facie case of discrimination. Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021). “The complaint need only allege enough facts to ‘raise a reasonable expectation that discovery will reveal evidence of [each] necessary element.‘” Id. (citation omitted). See also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) (establishing a prima facie case is an “evidentiary standard, not a pleading requirement.“).
C. Retaliation under the ADA (Count VI)
In Count VI, Plaintiff alleges a claim of retaliation under the ADA.8 Defendants move to dismiss the claim on the ground that she fails to allege protected activity under the statute.
Discrimination against an individual who has opposed a practice prohibited by the ADA is actionable conduct.
According to the Amended Complaint, both before and after Plaintiff‘s mother notified Duffey of her disability, Duffey flirted with her. Several weeks after her mother first advised Duffey of her condition, Plaintiff noticed that she was not getting sufficient work hours and complained to Duffey but nothing was done. Duffey continued to flirt with her, prompting
Plaintiff has not stated a claim for ADA retaliation. The Complaint does not assert that at the time of the events at issue, Plaintiff made any complaint, formal or informal, that anyone at Ollie‘s engaged in disparate treatment based on her disability, or that she sought, and was denied, a reasonable accommodation due to her neurological condition. Duffey is alleged to have flirted with her both before and after her mother advised him of her condition. While Plaintiff complained that she was not getting enough work hours several months after she was hired, Plaintiff does not allege that this was because of her disability. Moreover, she does not allege that she reported to management that Glenn was sexually harassing her because of her disability, or that Glenn was even aware of her disability. In fact, according to the factual allegations in the Complaint, at some point after she complained, she received additional shifts in exchange for a promise of sexual favors.
Thus, as Defendants note, in the absence of a protected activity, the allegations in the Complaint fail to establish that she sustained an adverse employment action that was connected to her disability. If a claim “is vulnerable to
Therefore, with respect to Count VI, the motion to dismiss will be granted and the claim will be dismissed with prejudice.
D. PHRA Claims (Count VII)
In Count VII, Plaintiff alleges the same claims of gender and disability discrimination and retaliation that she alleges under Title VII and the ADA in Counts I-VI. The PHRA prohibits all of these kinds of workplace discrimination. See
Defendants move to dismiss Count VII because Plaintiff‘s second EEOC charge of discrimination (containing allegations of discrimination on the basis of disability and retaliation) was untimely filed and further, with respect to any retaliation claim on the basis of sexual harassment, she fails to allege a causal nexus between her protected activity and any adverse employment action.
1. Timing of EEOC Charge
Under the PHRA, a complaint of discrimination (which is a prerequisite for bringing suit in court) must be filed with the PHRC within 180 days of the alleged discriminatory act.
As noted above, Plaintiff‘s second charge of discrimination (the one which asserted disability discrimination and retaliation) was not filed until August 30, 2024, which was 230 days after her January 13, 2024 termination. Thus, it was untimely.9
Plaintiff concedes this point. (ECF No. 20 at 15.) Therefore, with respect to the disability discrimination claims in Count VII, the motion to dismiss will be granted with prejudice.
2. Retaliation Related to Sexual Harassment
As explained above with respect to Count IV, Plaintiff has adequately alleged that she complained about sexual harassment and was subjected to further harassment and other adverse employment actions leading up to her termination. The Court of Appeals has held that “the same framework for analyzing retaliation claims applies to both” Title VII and the PHRA. Connelly v. Lane Const. Corp., 809 F.3d 780, 792 n.9 (3d Cir. 2016). Therefore, with respect to her sexual harassment and retaliation claim in Count VII, the motion to dismiss will be denied.
As a result, the motion to dismiss Count VII will be granted with prejudice with respect to Plaintiff‘s PHRA claims based on disability discrimination and otherwise denied.
In Count X, Plaintiff alleges a claim of intentional infliction of emotional distress.
Defendants move to dismiss Ollie‘s from this claim on the ground that, even if Duffey engaged in the actions that Plaintiff alleges, he did so outside the scope of his employment and there is no basis for holding his employer liable.
In Pennsylvania, an employer may be held liable for the torts of its employees only if that conduct falls within the employee‘s scope of employment. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1276 (3d Cir.1979). This applies to intentional conduct as well as negligent conduct. Costa v. Roxborough Mem. Hosp., 708 A.2d 490, 493 (Pa. Super. 1998) (citing Restatement (Second) of Agency § 228). Under Pennsylvania law:
The conduct of an employee is considered “within the scope of employment” for purposes of vicarious liability if: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer.
Costa, 708 A.2d at 493 (citing Fitzgerald v. McCutcheon, 410 A.2d 1270, 1272 (Pa. Super. 1979)).
Duffey‘s alleged actions—sexually harassing and assaulting Plaintiff and manipulating her into sending him nude pictures of her over Snapchat—cannot be described as falling within the scope of his employment. See Doe 6 v. Pennsylvania State Univ., 982 F. Supp. 2d 437, 445 (E.D. Pa. 2013) (rejecting vicarious liability claims, including intentional infliction of emotional distress, against university based on Gerald Sandusky‘s sexual assaults on minors because this conduct was not within the scope of his employment); Shaup v. Jack D‘s, Inc., 2004 WL 1837030, at *2 (E.D. Pa. Aug. 17, 2004) (dismissing claim as alleged against restaurant based on harassing conduct of several employees because the conduct was outside the scope of their
V. Conclusion
For the reasons explained above, the partial motion to dismiss filed by Defendants will be granted with prejudice with respect to Count VI and the PHRA claim based on disability in Count VII. Further, Ollie‘s will be dismissed with prejudice as a defendant with respect to Count X. In all other respects, the partial motion to dismiss will be denied.
An appropriate order will follow.
Dated: June 10, 2025
BY THE COURT:
/s/ Patricia L. Dodge
PATRICIA L. DODGE
UNITED STATES MAGISTRATE JUDGE