1 For purposes of evaluating the pending motions to dismiss, the Court accepts as

true all well-pleaded allegations contained in the Complaint (Doc. No. 1).

2 Plaintiff names Pretium Packaging, LLC and Pretium Packaging as separate

defendants in her Complaint. Pretium Packaging, LLC represents to the Court that Pretium

Packaging does not exist as a separate legal entity. Plaintiff does not address this representation

in her brief in opposition. Although counsel has entered an appearance on behalf of Pretium

Packaging, if the entity exists, it did not participate in the instant motions to dismiss. 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JANE BURLINGAME, :

:

Plaintiff : CIVIL ACTION NO. 1:05-CV-2469

:

v. : (Judge Kane)

:

PRETIUM PACKAGING, et al., :

:

Defendants :

MEMORANDUM

Before the Court are motions to dismiss from Defendants Pretium Packaging, LLC (Doc.

No. 10), David Winslett (Doc. No. 11), and Dale Behm and Andy Derby (Doc. No. 23). The

motions have been fully briefed and are ripe for disposition. For the reasons discussed below,

the motions will be granted in part and denied in part. 

I. BACKGROUND1

Plaintiff Jane Burlingame f/k/a/ Jane Mindler served as the Regional Director of Human

Resources for Pretium Packaging, LLC from February 2001 until her termination on October 31,

2003.2

 During that time, Plaintiff contends that she suffered sexual harassment and

discrimination that resulted in her termination. 

Plaintiff describes a working environment hostile to women in managerial positions. 

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 1 of 12
3 This citation refers to the first instance of ¶ 26 in Plaintiff’s Complaint.

4 Plaintiff’s Complaint lists ¶ 26 twice. This citation refers to the second instance.

5 While Defendant Derby is identified in Plaintiff’s Complaint, Plaintiff’s briefs

opposing the various Defendants’ motions to dismiss identify Defendant Behm as the one who

asked Plaintiff on a date. (Doc. Nos. 24, 25, and 29 at 3.)

2

Defendants eliminated managerial positions held by women only to subsequently reinstate and

fill the positions with men. (Doc. No. 1, ¶¶ 15, 32.) Despite her position as regional director of

human relations, Plaintiff was neither invited to management meetings nor informed about

certain terminations. (Id., ¶ 15, 18-23.) One manager, Defendant Behm, refused to work with

female employees, including Plaintiff, and avoided them in the hallways. (Id., ¶ 24.) When

Plaintiff learned that one management meeting was taking place, she entered the meeting,

causing Defendant Behm to walk out upon her entry. (Id., ¶ 19.) Although Plaintiff complained

about the treatment to her superiors in the “Corporate Offices”, she received no assistance. (Id.,

¶ 22.) 

Plaintiff also alleges that the individual defendants sexual harassed her. Male managers

routinely discussed the attire and figures of the female employees, including Plaintiff. (Id., ¶

26.3) Defendant Derby commented on Plaintiff’s legs, her attire, and on another female coworker’s “perky breasts,” while in the presence of Plaintiff. (Id., ¶¶ 25, 26.4

) After Plaintiff

rebuffed Defendant Derby’s5

 request for a date, he ignored Plaintiff “as retribution towards her

rejection of him”, negatively affecting Plaintiff’s ability to perform her job. (Id., ¶ 27.) Further,

Defendant Winslett made the comment that Plaintiff needed to be “Dale [Behm]’s little

cheerleader.” (Id., ¶ 23.) 

On October 31, 2003, Plaintiff’s position was eliminated and she was terminated,

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 2 of 12
3

allegedly because she was female. (Id., ¶ 33.) Plaintiff pursued a remedy through the United

States Equal Employment Opportunity Commission (“EEOC”), filing suit in this Court within 90

days of receiving a right-to-sue letter from them. (Id., ¶ 1.) 

On November 28, 2005, Plaintiff filed the instant civil action. (Doc. No. 1.) In six

counts, the Complaint alleges: deprivation of job opportunities in violation of 42 U.S.C. §

2000(e) et seq. (“Title VII”) (Count I); hostile work environment in violation of Title VII (Count

II); unlawful termination in violation of the “public policy” of Pennsylvania (Count III);

defamation in violation of Pennsylvania state law (Count IV), and conspiracy or failure to

prevent a conspiracy to engage in the aforementioned acts, in violation of 42 U.S.C. §§ 1985(3)

(Count V) and 1986 (Count VI). (Id.) Pretium Packaging, LLC moves to dismiss Counts II-VI

(Doc. No. 10), and Defendants Winslett, Behm, and Derby (“individual Defendants”) move to

dismiss all counts of the Complaint. (Doc. Nos. 11, 23.)

II. STANDARD OF REVIEW

A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1

F.3d 176, 183 (3d Cir. 1993). When considering a motion to dismiss, the court accepts as true all

factual allegations contained in the complaint and views them in the light most favorable to the

plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The plaintiff is

required to “set forth sufficient information to outline the elements of his claim or to permit

inferences to be drawn that those elements exist.” Kost, 1 F.3d at 183 (citations omitted). A

court should grant a motion to dismiss only if it appears the plaintiff can prove no set of facts in

support of his claim that would entitle him to relief. Wisniewski v. Johns-Manville Corp., 759

F.2d 271, 273 (3d Cir. 1985) (citations omitted).

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 3 of 12
6 Title VII actions take place only after EEOC exhaustion. The Court notes that

Plaintiff appended to her Complaint a right-to-sue letter from the Pennsylvania Human Relations

Commission (“PHRC”). (Doc. No. 1, Plaintiff’s Ex. A.) Courts treat the PHRA as coextensive

with Title VII, its federal counterpart. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996);

see also McLaughlin v. Rose Tree Media Sch. Dist., 1 F. Supp. 2d 476, 481-82 (E.D. Pa. 1998)

(“[C]ourts have held that the PHRA should be interpreted consistently with Title VII.”).

4

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is properly granted

when, taking all factual allegations and inferences as true, the moving party is entitled to

judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.

1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v.

Carter, 620 F.2d 29, 33 (3d Cir. 1980). “A court may dismiss a complaint only if it is clear that

no relief could be granted under any set of facts that could be proved consistent with the

allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, “a court need not

credit a complaint’s ‘bald assertions’ or ‘legal conclusions’ when deciding a motion to dismiss.” 

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). “The issue is not

whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence

to support the claims.” Lake v. Arnold, 112 F.3d 682, 688 (3d Cir. 1997) (citing Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S.

800 (1982)). 

III. DISCUSSION

A. Count I: Deprivation of Employment Opportunities in violation of Title VII

In Count I, Plaintiff alleges that Defendants deprived her of employment opportunities

because of her gender, in violation of Title VII.6 Pretium Packaging, LLC does not move to

dismiss this count. The individual Defendants move to dismiss, arguing that individuals may not

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 4 of 12
5

be held liable under Title VII. Kachmar v. Sungard Data Systems, Inc., 109 F.3d 173, 184 (3d

Cir. 1997); Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1078 (3d Cir. 1996). 

Plaintiff counters that “[while] it is true that Courts have held that there is no individual liability

under Title VII some Courts have held otherwise,” citing Doe v. William Shapiro, Esq., P.C.,

852 F. Supp. 1246, 1252 (E.D. Pa. 1994) to support that proposition. However, two years after

Doe, in an en banc decision, the Third Circuit held “that Congress did not intend to hold

individual employees liable under Title VII.” Sheridan, 100 F.3d at 1078. Third Circuit

precedent defeats Plaintiff’s argument. Accordingly, the individual Defendants’ motions to

dismiss Count I will be granted.

B. Count II: Hostile Work Environment in violation of Title VII

1. Individual Defendants

Count II alleges that Defendants created a hostile working environment in violation of

Title VII. Because Count II is also based on a Title VII claim, the individual Defendants may

not be held liable. Sheridan, 100 F.3d at 1078. Accordingly, the individual Defendants’ motions

to dismiss Count II will be granted.

2. Pretium Packaging, LLC 

Pretium Packaging, LLC also moves to dismiss Count II, arguing that Plaintiff has not

specifically alleged that she was subjected to unwelcome sexual harassment and therefore has

not stated a proper Title VII claim of a “hostile work environment”. (Doc. No. 15 at 2-3.) It is

well-established that a Title VII discrimination claim can be predicated upon the existence of a

hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (citing

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)); Jensen v. Potter, 435 F.3d 444,

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 5 of 12
6

448 (3d Cir. 2006). A successful environmental claim must allege “sexual harassment so ‘severe

or pervasive’ as to ‘alter the conditions of [the victim’s] employment and create an abusive

working environment.’” Faragher, 524 U.S. at 786 (citing Henson v. Dundee, 682 F.2d 897, 904

(11th Cir. 1982). 

The discrimination can alternatively be either “severe” or “pervasive” and still satisfy the

requirements of a Title VII hostile work environment. Jensen, 435 F.3d at 449 n.3. However the

“sexually objectionable environment must be both objectively and subjectively offensive, one

that a reasonable person would find hostile or abusive, and one that the victim in fact did

perceive to be so.” Faragher, 524 U.S. at 787 (citing Harris v. Forklift Sys., 510 U.S. 17, 21-22

(1993)). “Simple teasing” is not enough to create a hostile work environment. Oncale v.

Sundowner Offshore Servs., 523 U.S. 75, 81 (1998). Rather, a court should evaluate the

“frequency of the discriminatory conduct[,] its severity[,] whether it is physically threatening or

humiliating, or a mere offensive utterance[,] and whether it unreasonably interferes with an

employee’s work performance.” Harris, 510 U.S. at 23. In conducting this evaluation, a court

shall evaluate the “overall scenario” rather than reviewing each incident in isolation. Jensen,

435 F.3d at 450 (quoting Andrews v. Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990)). 

Finally, a successful hostile work environment claim under Title VII must assert “the

existence of respondeat superior liability.” Andrews v. City of Philadelphia, 895 F. 2d 1469,

1482 (3d Cir. 1990). The employer can be liable if it negligently or recklessly failed to take

prompt and effective remedial action upon notice of harassment or “the individual charged with

creating the abusive atmosphere . . . was indisputably within that class of an employer

organization’s officials who may be treated as the organization’s proxy,” such as the owner of

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 6 of 12
7

the company or a supervisor in a “sufficiently high position ‘in the management hierarchy of the

company for his actions to be imputed automatically to the employer.’” Faragher, 524 U.S. at

789-90 (quoting Torres v. Pisano, 116 F.3d 625, 634 (2d Cir. 1997)); Knabe v. Boury Corp., 114

F.3d 407, 411 (3d Cir. 1997). 

Plaintiff describes a working environment very hostile to female employees. Plaintiff

alleges that managers at Pretium Packaging, LLC routinely prevented female employees from

performing their work and attempted to systematically eliminate women from management

positions. Plaintiff alleges that Defendant Behm refused to work with or speak to female

employees. Although Plaintiff complained about this behavior to her superiors, her complaints

were ignored. Plaintiff further alleges that male employees regularly discussed the physical

appearance of female employees in the workplace. Moreover, Plaintiff alleges that when she

rejected Defendant Derby’s request for a date, he began to ignore her, which negatively impacted

her ability to perform her work. The facts alleged by Plaintiff, if proven, constitute a severe and

pervasive environment of unwelcome sexual harassment. (Doc. No. 15 at 3.) Accordingly,

Pretium Packaging, LLC’s motion to dismiss Count II will be denied.

C. Count III: Pennsylvania Common Law Unlawful Termination

Count III of Plaintiff’s Complaint alleges that her termination was in violation of the

common law of Pennsylvania, stating that the termination “violates public policy of the

Commonwealth.” (Doc. No. 1, ¶ 53.) Defendants move to dismiss on the grounds that the

existence of a legislative remedy and procedure, specifically the Pennsylvania Human Relations

Act (“PHRA”), renders a common law remedy for that violation unavailable. Plaintiff does not

address this argument in her briefs in opposition to Defendants’ motions to dismiss Count III.

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 7 of 12
8

Exhaustion of administrative rights under the PHRA yields a right to sue under

Pennsylvania state statute, specifically 43 P.S. § 962(c). The Third Circuit found that:

[B]ecause the Pennsylvania courts have frequently stated that the

procedures legislatively mandated in the [PHRA] must be strictly

followed, and because recognition of a common law action for the

same claims would give the claimant an opportunity to circumvent

the carefully drafted legislative procedures, we predicted that

where the public policy allegedly implicated by the employee

discharge is derived entirely from a statute that also provides a

legal remedy, Pennsylvania courts will not recognize a common

law cause of action.

Murray v. Commercial Union Ins. Co., 782 F.2d 432, 436 (3d Cir. 1986). See also Zarazed v.

Spar Mgmt. Servs., 2006 U.S. Dist. LEXIS 3302 at *22 (E.D. Pa. Jan. 30, 2006) (indicating that

the PHRA preempts common law claims where that Pennsylvania statute is applicable);

McGovern v. Jack D’s, Inc., 2004 U.S. Dist. LEXIS 4326 at *5 (E. D. Pa. Feb. 25, 2004)

(“[W]here a statute provides a remedy for a certain type of injury, a common law action designed

to redress the same injury is rendered superfluous”). Because the PHRA provides a remedy for

sexual harassment of employees, common law claims invoking “public policy” are not available. 

Accordingly, Count III of Plaintiff’s Complaint will be dismissed.

D. Count IV: Defamation

In Count IV, Plaintiff argues that Defendants have defamed her, ruining her reputation

and humiliating her. Defendants move to dismiss this count, arguing, inter alia, that Plaintiff’s

defamation claim is barred by a one-year statute of limitations. See 42 Pa. Const. Stat. §

5523(1); Spain v. Vincente, 461 A.2d 833 (Pa. Super. 1983). (Doc. Nos. 15, 14, 28.) Plaintiff

concedes that the defamatory acts ceased as of her October 31, 2003 termination date and that

she did not file her claim until November 28, 2005, more than one year later. (Doc. No. 24 at

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 8 of 12
7

 The Mincin court noted that in Pennsylvania, the general rule it that “the statutory

period commences at the time the harm is suffered” and found that “[i]n determining whether to

toll the statute of limitations in a civil action, the Pennsylvania state courts have consistently

adhered to the procedure of ascertaining when the harm was sustained, otherwise known as the

‘occurrence rule’, and whether the discovery rule or doctrine of equitable estoppel is applicable.” 

Id. at 718 (citing Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993); Robbins & Seventko v.

Geisenberger, 674 A.2d 244, 246 (Pa. Super. 1996)). The Mincin court concluded that “[g]iven

the reluctance of the Pennsylvania courts to stray from the occurrence rule, the discovery rule

and the doctrine of equitable estoppel . . . the Pennsylvania Supreme Court would not toll the

statute of limitations for related state tort claims because of the pendency of a discrimination

charge before the PHRC/EEOC.” Id. at 719. 

9

10.) However, Plaintiff argues, without citation, that the statute of limitations for her defamation

claim should be tolled to exclude the time the PHRC and EEOC investigated her claims. 

Although the Pennsylvania Supreme Court has not yet spoken on this issue, federal

district courts have consistently extended the logic of Johnson v. Railway Express Agency, 421

U.S. 454, 465-66 (1975) to hold that the pendency of a discrimination charge before the PHRC

or EEOC does not toll the statute of limitations for related Pennsylvania state tort claims. See

Hartman v. Sterling, Inc., 2003 U.S. Dist. LEXIS 18140 at *47-48 (E.D. Pa. 2003); Bacone v.

Philadelphia Housing Authority, 2001 U.S. Dist. LEXIS 9081 at *12 (E.D. Pa. 2001); Vaughan

v. Pathmark Stores, Inc., 1999 U.S. Dist. LEXIS 6698 (E.D. Pa. 1999); Mincin v. Shaw Packing

Co., 989 F. Supp. 710 (W.D. Pa. 1997). The Court finds the above holdings convincing.7

Plaintiff cites to no authority, and the Court finds none, to support her argument that this Court

should toll the one-year statute of limitations. Accordingly, because Plaintiff’s claim is time

barred, Defendants’ motions to dismiss Count IV of Plaintiff’s Complaint will be granted.

E. Count V: 42 U.S.C. § 1985(3) Conspiracy

In Count V, Plaintiff alleges a conspiracy among the defendants in violation of 42 U.S.C.

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 9 of 12
10

§ 1985(3). Defendants move to dismiss Count V, arguing, inter alia, that the deprivation of a

right created by Title VII cannot be the basis of a cause of action under § 1985(3). 

The United States Supreme Court found that Title VII violations are not actionable under

§ 1985(3) because complainants should not be able to “completely bypass the administrative

process” required to resolve a Title VII violation. Great American Federal Savings & Loan

Assn. v. Novotny, 442 U.S. 366, 375-76 (1979). As such, Plaintiff’s Title VII claim cannot “be

asserted within the remedial framework of § 1985(3).” Id., at 377 (emphasis in original). 

Without a cause of action for a “particular act” underlying the conspiracy, that conspiracy count

must be dismissed. Nix v. Temple University, 596 A.2d 1132, 1137 (Pa. Super. 1991). Plaintiff

asserts no federal cause of action other than Title VII, and therefore she has no cause of action

for an acceptable “particular act” underlying her conspiracy claim. See Brown v. Philip Morris,

Inc., 250 F.3d 789, 805 (3d Cir. 2001) (“It is well established that § 1985(3) does not itself create

any substantive rights; rather, it serves only as a vehicle for vindicating federal rights and

privileges which have been defined elsewhere.”). Accordingly, Defendants’ motions to dismiss

Count V of Plaintiff’s Complaint will be granted. 

F. Count VI: 42 U.S.C. § 1986 Failure to Prevent a Conspiracy 

Count VI alleges a violation of 42 U.S.C. § 1986 in connection with Count V. A cause of

action under 42 U.S.C. § 1986 applies when some of the defendants did not participate in a

conspiracy but negligently refused to act to stop it. This claim is supplementary to a § 1985(3)

claim, in that “it can only be pleaded once plaintiffs have sufficiently alleged a § 1985(3)

violation.” Santiago v. Philadelphia, 435 F.Supp. 136, 156 (E.D. Pa. 1977) (citing Hahn v.

Sargent, 523 F.2d 461, 470 (1st Cir. 1975)). Because Plaintiff’s § 1985(3) claim will be

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 10 of 12
11

dismissed, her § 1986 claim cannot survive. Accordingly, Defendants’ motions to dismiss Count

VI will be granted.

An appropriate Order shall follow.

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 11 of 12
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JANE BURLINGAME, :

:

Plaintiff : CIVIL ACTION NO. 1:05-CV-2469

:

v. : (Judge Kane)

:

PRETIUM PACKAGING, et al., :

:

Defendants :

ORDER

AND NOW, this 8th day of August, 2006, IT IS HEREBY ORDERED THAT

Defendant Winslett’s (Doc No. 11) and Defendants Behm and Derby’s (Doc. No. 23) Motions to

Dismiss are GRANTED. All counts against Defendants Winslett, Behm, and Derby are

DISMISSED.

IT IS FURTHER ORDERED THAT Defendant Pretium Packaging, LLC’s Motion to

Dismiss (Doc. No. 10) is DENIED as to Count II and GRANTED as to Counts III, IV, V, and

VI of Plaintiff’s Complaint. Counts III - VI against Defendant Pretium Packaging, LLC are

DISMISSED. 

 s/ Yvette Kane 

Yvette Kane

United States District Judge

Case 4:05-cv-02469-YK Document 35 Filed 08/08/06 Page 12 of 12