PA Court Holds That an Employer May Be Held Liable for Harassment by a Non-Employee

In Hewitt v. BS Transportation of Illinois, LLC, et al., No. 18-712, 2019 WL 199900 (E.D. Pa. January 11, 2019), a federal judge in Pennsylvania ruled that an employer may be held liable for harassment by a non-employee under Title VII.  

The plaintiff in the case, Carl Hewitt, brought numerous claims against his employer, BS Transportation, LLC (“BS Transportation”) relating to sexual harassment that he endured by nonemployee, Anthony Perillo from 2014-2016 when he was constructively discharged. Plaintiff’s job for BS Transportation involved loading oil at Sunoco’s refinery in Marcus Hook, Pennsylvania on a weekly basis.

According to Plaintiff’s Complaint, in early 2014, Perillo, a Sunoco employee, began making sexual advances toward Plaintiff when he traveled to Sunoco’s plant to fill up with fuel. Perillo made sexual comments and hand gestures towards Plaintiff at least once or twice per week. Plaintiff begged Perillo to stop the remarks, but this resulted in more aggressive behavior on Perillo’s part. Perillo brushed past Plaintiff so as to make body conduct and paraded around in his underwear in front of Plaintiff. On August 10, 2016, Perillo grabbed Plaintiff’s butt with one hand and shoved Plaintiff into the trailer of Plaintiff’s freight car with the other hand. Perillo leaned in to Plaintiff and asked him whether he liked this.

That same day, on August 10, 2016, Plaintiff reported Perillo’s conduct to Mark Frederick, Perillo’s supervisor, who told Plaintiff that he would make a report and “take care of it”. Later that same day, Bruce Schunke, Plaintiff’s supervisor and owner of BS Transportation, contacted Plaintiff and informed him that he had talked to Frederick and would handle the matter with Perillo and asked Plaintiff not to say any more about it.

After Plaintiff’s August 10, 2016 report, Perillo stopped his harassment until the end of September 2016 when he began making sexual hand gestures toward Plaintiff again. Frederick was present and did nothing to investigate. Perillo asked Plaintiff why he had reported him and threatened to bring his gun into the plant and kill everyone there. Plaintiff reported to Schunke that Perillo had resumed making inappropriate sexual comments and gestures, but Schunke did not notify Sunoco of Plaintiff’s complaints. Shortly thereafter, Plaintiff was constructively terminated. As a result of the harassment, he alleged that he suffered severe emotional and physical distress.

In his decision, Judge DuBois of the Eastern District of PA noted that the Third Circuit had not addressed the questions as to whether an employer could be held liable for discrimination by a nonemployee. Other district courts in the Third Circuit have held that an employer may be held liable “where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” Johnson-Harris v. AmQuip Cranes Rental, LLC, No. 14-767, 2015 WL 4113542, at *8 (E.D. Pa. July 8, 2015). “An employer knew or should have known about workplace sexual harassment if “management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment.’” Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 105 (3d Cir. 2009).

Here, the Court held that at this stage in the litigation, Plaintiff’s allegations that Schunke failed to investigate his complaints of sexual harassment by Perillo or notify Sunoco of his continued complaints are sufficient to withstand a motion to dismiss. Thus, the Court denied BS Transportation’s motion to dismiss Plaintiff’s claim of hostile work environment based on sex discrimination under Title VII.