The opinion of the court was delivered by: Brotman, District Judge.
OPINION ON DEFENDANTS' MOTIONS TO DISMISS AND/OR TRANSFER VENUE
Presently before the Court in this sexual harassment case are
defendants' motions to (a) dismiss ten of the eleven counts of
the complaint for failure to state a claim; and/or (b) transfer
venue of this action to the Eastern District of Pennsylvania.
Because portions of plaintiff's complaint state claims upon which
relief may be granted, this Court will grant in part and deny in
part defendants' motion to dismiss, with leave to amend one count
of the complaint. Additionally, because a substantial part of the
events giving rise to plaintiff's claim arose in New Jersey, the
Court will deny defendants' motion to transfer venue.
II. FACTUAL AND PROCEDURAL BACKGROUND
This matter involves sexual harassment and allied claims
brought by plaintiff Catherine Calkins against her former
employer, Dollarland, Inc., and two of its managers. Dollarland,
a Pennsylvania corporation, is a discount merchandise chain with
stores throughout the Delaware Valley region. Calkins worked for
Dollarland in eastern Pennsylvania as a retail salesperson, and
later as a store manager, from November 1993 to early 1995, when
she took a job with a competing chain. In November 1996, she
returned to Dollarland as a store manager, and around April 1998
she went to work in the company's Bellmawr, New Jersey, store.
Defendant Jerry Witten was a district manager during both of
Calkins' stints with the company, and was her direct supervisor
for most of her employment, although the parties dispute how
long he remained her supervisor once she transferred to New
Jersey. Witten reported to defendant Howard Kerdeman, who was the
general manager of Dollarland. Claiming that both Witten and
Kerdeman had harassed her and created an intolerable work
environment, Calkins resigned from Dollarland in September 1998.
Both Witten and Kerdeman deny any harassment.
A. Witten's Alleged Conduct
Calkins claims that from the beginning of her employment with
Dollarland, Witten engaged in crude, offensive behavior and made
unwanted advances. She says he often referred to her as a
"bitch," "crazy bitch" and "goofy bitch." (Compl. p. 3.) He would
tell her she had "nice big boobs" and that she should not wear
long blouses so that she could "show off her ass." (Compl. p. 3.)
He inquired about her sexual relations and told her she could
have really good sex with him. On one occasion, Witten allegedly
"told Calkins that he could have licked her belly button inside
and out." (Compl. pp. 3-4.) He often told her that he wanted to
marry and asked her out, even after she got married in 1994. She
claims that he often touched her in offensive ways — including on
her back, arms and legs — and would make sexual comments while
doing so. Calkins claims that Witten also harassed other female
employees, telling obscene jokes in front of them as well as
luring them into a back room and trying to kiss them. Witten
would encourage an assistant store manager under Calkins'
supervision to rub her hands all over each man, and Witten would
make "lewd noises" while this was taking place. (Compl. p. 4.)
Finally, Calkins maintains, Witten told her that if she had
engaged in sex with him, she would have advanced to higher
management positions at Dollarland.
B. Kerdeman's Alleged Conduct
Calkins maintains that she reported Witten's behavior to
Kerdeman, who allegedly told her to "live with it." (Compl. p.
5.) Moreover, Calkins claims, Kerdeman engaged in some of the
same types of behavior. He also would encourage the assistant
store manager to rub her hands all over him. Additionally, he
would tell obscene jokes and make sexually explicit remarks to
Calkins and other female employees, at one point saying to
Calkins, "Let me bang you." (Compl. p. 9.) Because she refused
his advances, Calkins avers, Kerdeman "embarked upon a campaign
of terror" against her. (Compl. p. 9.) He would come into her
store and scream, curse, and throw things. (Compl. p. 9.) He
criticized her looks, hair, age and clothes, and told Witten and
others that he hated Calkins and wanted to make her quit. He also
insisted that Witten give Calkins a hard time to make her quit.
The harassment became so bad, Calkins maintains, that she took
a job with another company in 1995 to escape the abuse. Kerdeman
allegedly visited her at her new place of employment, however,
and tried to persuade her to come back: "[h]e said that he would
behave and that he would `keep a leash' on [Witten]." (Compl. p.
10.) Upon her return to Dollarland in November 1996, she
maintains, Kerdeman told her new district manager to "give
Calkins a hard time." (Compl. p. 10.)
C. Alleged Conduct of Dollarland Corporate Officers
Calkins maintains that she reported Witten and Kerdeman's
behavior to Jeff Pincus, Dollarland's chief executive officer and
principal shareholder, and Jeff Mazer, the company controller.
The company, which according to Calkins had previously been
involved in harassment cases, also allegedly has received reports
from two other employees about the conduct of the two men. No
investigation or disciplinary action followed, however, and
Witten and Kerdeman continued their misconduct, she alleges.
Calkins maintains that Dollarland provided inadequate training
and had no
mechanisms in place to prevent sexual harassment.
Calkins also claims that once she reported her concerns about
Witten and Kerdeman, she was treated differently by her
supervisors. They criticized her, whereas previously the had
praised her for outstanding work. She was given additional work
assignments and treated as though she was the wrongdoer. She was
not allowed to pursue her grievance in confidence; instead, other
employees learned of her complaints and teased and intimidated
Calkins filed an eleven-count complaint with the Superior Court
of New Jersey, Camden County, Law Division, on Aug. 18, 1999. She
brings common-law claims against both Witten and Kerdeman for
harassment, sexual harassment, intentional infliction of
emotional distress, and negligent infliction of emotional
distress. Additionally, she brings common-law claims against
Dollarland for respondeat superior liability and maintenance of a
hostile work environment. Finally, Calkins asserts a
hostile-environment sex discrimination claim against Dollarland
under the New Jersey Law Against Discrimination, N.J. Stat. Ann.
§ 10:5-1. She claims damages for physical injuries, including
high blood pressure, as well as mental anguish and emotional
After removing the case to this Court, defendants on Dec. 2,
1999, moved to dismiss the ten common law claims as well as
transfer the case to the Eastern District of Pennsylvania.
Calkins' response and defendants' reply brief, as well as
certifications by each party, were filed the same day.
Accordingly, defendants' motions are now ripe for consideration.
Because this Court need not address the sufficiency ...