in the united states district court for the...

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JENNIFER FINLEY,

Plaintiff,

v.

WESTERN PENN WAXING, LLC;

EUROPEAN WAX CENTER

FRANCHISE GROUP, INC.,

Defendants.

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Civil Action No.

JURY TRIAL DEMANDED

COMPLAINT

INTRODUCTION

1. In September 2012, Plaintiff Jennifer Finley (“Plaintiff” or “Finley”) accepted a

job as a “Wax Specialist” at a newly opened spa, which was owned by Defendant Western Penn

Waxing LLC (“European Wax Center” or “the Wexford Spa”), a franchisee of Defendant EWC

Franchise Group, Inc (“EWC Corporate” or the “Franchisor”) (collectively, “the Employers”).

Because her pay was to be based partly on commission, Finley spent the next few weeks working

from home to build a clientele prior to her first day of on-site training scheduled for October 1,

2012.

2. On October 1, 2012, Finley attended her first day of “training,” which was run by

an EWC Corporate representative. The corporate trainer announced that, as part of this

“training” program, Finley and her co-workers were required to perform “Brazilian-style” waxes

on each other the following day. A “Brazilian” is a method and style of public hair removal, in

Case 2:13-cv-00909-JFC Document 1 Filed 06/27/13 of 13

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which one applies a heated adhesive wax to the pubic hair on or near another’s anus and

genitalia, and then forcibly removes that wax and hair by “tearing” the adhesive from the

person’s skin.

3. Finley refused to comply with this “training,” because it was humiliating, painful,

embarrassing, and discriminatory. Moreover, Finley was scheduled to begin menstruating on the

same day she was expected to have the Brazilian wax, and expected to be extremely sensitive in

the most private region of her body.

4. When Finley explained her opposition to the mandatory “Brazilian” waxing, and

explained that receiving a “Brazilian” wax would be extremely painful and humiliating because

of her menstruation, the corporate trainer responded that she should “put in a fresh tampon and

take and ibuprofen and you’ll be fine.”

5. Finley promptly approached the owner of the Wexford Spa, and explained to him

that she refused to submit to a “Brazilian” wax performed on her by her co-workers, and that the

Employers could not require her to do so. Finley was terminated immediately.

6. The Employers’ policy of requiring female Wax Specialists to submit to

“Brazilian” waxes, and the termination of Finley in response to her opposing this policy and

refusing to submit to such a procedure, give rise to claims of harassment, discrimination, and

retaliation under the Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (“Title

VII”) and the Pennsylvania Human Relations Act, 43 P.S. §951 et seq. (“PHRA”). The same

facts give rise to a claim for wrongful termination under Pennsylvania common law.

JURISDICTION AND VENUE

7. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1331, and § 1343


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with respect to Plaintiff’s federal law claims, and pursuant to 28 U.S.C. § 1367 with respect to

Plaintiff’s related state law claims.

8. Because all violations of law giving rise to Plaintiff’s claims occurred in

Allegheny County, and because both Plaintiff and Defendant West Penn Waxing LLC reside in

Allegheny County, venue is proper in the Western District of Pennsylvania pursuant to 28 U.S.C.

§ 1391.

PARTIES

9. Plaintiff Jennifer Finley is a 35 year-old female residing in Wexford,

Pennsylvania. Finley was employed by Defendants (within the meaning of Title VII, the PHRA,

and Pennsylvania common law) for approximately three weeks before she was involuntarily

terminated.

10. Defendant Western Penn Waxing LLC is a New Jersey-registered Limited

Liability Company that owns and operates a spa in Wexford, Pennsylvania. At all relevant

times, Western Penn Waxing LLC was Finley’s employer within the meaning of Title VII, the

PHRA, and Pennsylvania common law.

11. Defendant European Wax Center Franchise Group, Inc. is a Corporation

registered and headquartered in Florida, with operations in Wexford, Pennsylvania. At all

relevant times, European Wax Center Franchise Group, Inc. was Finley’s employer within the

meaning of Title VII, the PHRA, and Pennsylvania common law.

FACTS

12. On or about August 15, 2012, Finley applied for a position with the Employers as


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a “Wax Specialist.” Shortly thereafter, she was interviewed by Ryan Glastein, the Owner and

sole Member of Western Penn Waxing LLC (which LLC owns and operates the Spa under the

name “European Wax Center”).

13. On or about September 15, 2012, Finley was hired by the Employers as a Wax

Specialist, with a pay rate of $8.00/hour (plus a small commission).

14. During the first few weeks of her employment, Finley’s job duties were limited to

“building her clientele base,” e.g., contacting potential clients, passing out flyers for the Wexford

Spa, and other various marketing tasks.

15. Defendants asked Finley to report to the Wexford Spa on October 1, 2012 for

“training” with other newly hired Wax Specialists.

16. When Finley reported to the Spa for training, she was instructed to report to the

EWC Corporate trainer, who was visiting the Wexford Spa to provide training services. EWC

Corporate requires all franchisees, including the Wexford Spa, to undergo a “Training Program”

that addresses, inter alia, the practical training, hiring and firing of employees. On information

and belief, Finley alleges that the EWC Corporate trainer’s name is Patty Oehm.

17. After displaying a EWC Corporate training video, Oehm reviewed what activities

the training sessions would include. First, Oehm explained that the Wax Specialists would be

“practicing” their waxing techniques by waxing each other’s legs. Then, Oehm explained that,

the next day, the Waxing Specialists would be practicing their “Brazilian Wax” techniques by

performing “Brazilian Waxes” on each other.

18. “Brazilian Wax” is a term used to describe a range of waxing procedures. The

term generally refers to the complete removal of all hair surrounding a person’s anus and


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genitalia. There are multiple methods of completing a “Brazilian wax.” Most typically, the hair

removal is achieved by instructing clients to either lie back and spread their legs, or get onto their

hands and knees, exposing their anus and genitalia; applying warmed wax to the area

surrounding the person’s anus and genitalia; allowing the wax to dry and cool; and then “tearing”

the wax away with a swift gesture, simultaneously removing most or all of the pubic hair.

19. EWC Corporate requires all franchise locations, including the Wexford Spa, to

train female Wax Specialists on how to perform Brazilian waxes by requiring those Wax

Specialists to perform such waxes on each other.

20. The Employers do not require male employees to perform Brazilian waxes on co-

workers, nor do they require male employees to receive Brazilian waxes from co-workers.

21. Prior to Oehm’s announcement, Finley was unaware that the Employers included

mandatory mutual Brazilian waxing as a portion of the Wexford Spa’s training program, or as

part of EWC Corporate’s corporate training policies.

22. Finley objected to the Brazilian wax portion of the training because it is often an

extremely painful experience, because she did not want to expose her anus and genitalia to her

co-workers, because she did not want her co-workers to touch her anus and genitalia, and

because she simply did not want to have her anus and pubic hair removed. Moreover, Finley

was expecting her menstruation period to begin that same morning (October 2, 2012), and a

woman’s genitalia become swollen and sensitive to pain during menstruation.

23. Finley immediately articulated her objection to Oehm, and explained that she was

about to begin her menstruation period.

24. After Finley stated her objection to the mandatory Brazilian wax, several of her


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co-workers immediately stated that they also were menstruating or beginning their menstruation.

25. Oehm responded that the Brazilian wax portion of training was mandatory, and

she instructed Finley, and anyone else who was menstruating, to “pop a fresh tampon, take some

ibuprofen, and you’ll be fine.” Finley was extremely offended by Oehm’s response.

26. Finley then explained to Oehm that she would not participate in the Brazilian

Wax portion of the training, and would not consent to any co-worker or representative of the

Employers viewing or touching her anus and genitalia under any circumstances.

27. Oehm reiterated that the Brazilian wax portion of training was mandatory.

28. In response to Oehm’s statement that the Brazilian waxing was mandatory, Finley

explained to Oehm that she believed it was unlawful for the Employers to require her to do so;

that she thought it was sexually harassing and discriminatory for the Employers to require her to

expose her anus and genitalia to her co-workers; that she thought it was sexually harassing and

discriminatory to require her to permit her co-workers to touch her anus and genitalia, apply wax

to both areas, and then remove her pubic hair in front of a group of people; and that she found

the idea of receiving a Brazilian wax in front of her co-workers to be a humiliating and

embarrassing invasion of her privacy, particularly since she was to begin her menstruation period

the same day.

29. Moreover, while Finley felt comfortable performing a Brazilian wax at the request

of a voluntary paying customer, she did not know whether her co-workers actually consented to a

Brazilian wax or if their consent to such a procedure was coerced by the Employers’ mandate.

Finley’s doubt as to the validity of her co-workers’ consent was amplified by the fact that several

of them immediately claimed to be menstruating after Finley said the same. Finley suspected


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that her co-workers said this as an “excuse” to get out of the exercise.

30. After Finley explained why she refused to participate in the Brazilian wax portion

of training, she asked Oehm if she could speak with Ryan Glastein, the owner.

31. Oehm then split up the Wax Specialists into several rooms for the leg-waxing

portion of the training, and Finley was put in a treatment room with another wax specialist

named Lisa.

32. Finley indicated to Oehm that she thought she should talk to Glastein before she

participated in the leg waxing training because she wanted an opportunity to ask him whether the

Brazilian wax portion of the training—i.e., the requirement that she permit her co-workers to

remove the pubic hair surrounding her anus and genitalia—was indeed mandatory.

33. While Finley was waiting with Lisa, Oehm left to inform Glastein that Finley was

refusing to receive a Brazilian wax and wanted to speak with him.

34. A few minutes later, Finley met with Glastein in another treatment room.

Glastein explained that he had learned of Finley’s refusal to have a Brazilian wax performed on

her, and asked Finley if that was true. Finley replied that she was refusing to participate in that

aspect of the training. Glastein asserted that, during her interview, Finley had agreed to receive a

Brazilian wax from her co-workers. Finley denied that she had ever agreed to do so, and

asserted again that she would not consent to that aspect of training.


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35. Glastein immediately notified Finley that she was terminated for violation of the

EWC Corporate policy.

36. Finley timely filed two Charges of Discrimination with the Equal Employment

Opportunity Commission (“EEOC”) on December 14, 2012 against EWC Corporate and the

European Wax Center, alleging claims of discrimination, harassment, and retaliation. Plaintiff’s

Charges were then dual-filed with the Pennsylvania Human Relations Commission (“PHRC”).

37. On May 6, 2013, the EEOC issued a Notice of Right to Sue with respect to both

Charges.

38. This Complaint is filed within 90 days of Plaintiff’s receipt of the Notice of Right

to Sue in both Charges.

Count I – Wrongful Termination in Violation of Public Policy

(Against All Defendants)

39. Plaintiff incorporates the preceding paragraphs as if set forth fully herein.

40. Plaintiff was terminated because she refused to consent to a Brazilian wax

performed by and in front of her co-workers, and because she refused to perform a Brazilian wax

on and in front of her co-workers.

41. Plaintiff has a right to bodily privacy, and against invasion of that privacy, under

well-established, clearly articulated and important public policies of the Commonwealth of

Pennsylvania, most notably those policies that are articulated in the common law tort of

“invasion of privacy” or “intrusion upon seclusion.”

42. Plaintiff has an unassailable right to refuse to consent to another person’s contact

with her sexual organs, including her anus and genitalia, under well-established, clearly


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articulated and important public policies of the Commonwealth of Pennsylvania, most notably

those policies that are articulated in the common law tort of battery (or sexual battery) and the

crime of sexual assault (18 Pa. C.S. § 3123).

43. Plaintiff also has a duty never to initiate contact with another person’s sexual

organs, including their anus and genitalia, under well-established, clearly articulated and

important public policies of the Commonwealth of Pennsylvania, most notably those policies

that are articulated in the common law tort of battery (or sexual battery) and the crime of sexual

assault (18 Pa. C.S. § 3123).

44. Defendants’ termination of Plaintiff in response to her refusal to consent to a

Brazilian wax, and in response to her reluctance to perform a Brazilian wax on her co-workers,

violates the aforementioned public policies of the Commonwealth of Pennsylvania.

45. As a direct and proximate result of the Employers’ wrongful termination, Plaintiff

has lost wages and other forms of remuneration, and has suffered from humiliation,

embarrassment, anxiety and emotional distress.

Count II – Retaliation in Violation of Title VII and the PHRA



47. Plaintiff engaged in the protected activity of opposing the Employers’ mandatory

Brazilian wax training requirement, which Plaintiff reasonably believed to be unlawful,

harassing and discriminatory under Title VII and the PHRA.

48. As a direct result of Plaintiff’s protected activities, the Employers terminated her

employment.


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49. Defendants therefore retaliated against Plaintiff because she opposed conduct

made unlawful by Title VII and the PHRA.

50. Defendants’ termination of Plaintiff evinces Defendants’ malice and/or reckless

indifference to Plaintiff’s right, under Title VII and the PHRA, to oppose conduct made unlawful

by those statutes.

51. As a direct and proximate result of the Employers’ retaliation, Plaintiff has lost

wages and other forms of remuneration, and has suffered from humiliation, embarrassment,

anxiety and emotional distress.

Count III – Sex/Gender Discrimination in Violation of Title VII and the PHRA



53. Plaintiff is a member of a protected class under Title VII and the PHRA, insofar

as she is female.

54. As a licensed esthetician, Plaintiff is qualified for the position of Wax Specialist.

55. Plaintiff suffered the adverse employment action of termination.

56. Plaintiff’s termination was motivated by her sex and gender. Plaintiff was

terminated because she refused to consent, as part of her training, to having her female genitalia

and her anus waxed by her co-workers. The Employers’ male employees are not subjected to

this training requirement, and are not terminated if they refuse to comply with this training

requirement. Accordingly, Plaintiff’s termination evinces the Employers’ preferential treatment

of males and bias against females.


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57. The Employers’ actions comprise sex/gender discrimination under Title VII and

the PHRA.

58. The Employers knew their actions against Plaintiff were in violation

of Title VII and the PHRA.

59. As a direct and proximate result of the Employers’ discriminatory actions,

Plaintiff has lost wages and other forms of remuneration, and has suffered from humiliation,

embarrassment, anxiety and emotional distress.

Count IV – Sex Harassment in Violation of Title VII and the PHRA



61. Defendants’ mandatory training program, which requires certain female

employees to perform Brazilian waxes on each other, intentionally exposes female employees to

disadvantageous terms and conditions of employment when compared with male employees.

62. As set forth in detail above, Defendants’ mandatory Brazilian wax training made

unwelcome and objectively offensive contact with Plaintiff’s sexual organs a mandatory

condition of her continued employment.

63. Defendants’ mandatory Brazilian wax training was so severe and extreme as to

alter the conditions of Plaintiff’s employment.

64. Defendants are liable for the sexual harassment of Plaintiff, under Title VII and

the PHRA, because the individuals responsible for the harassing conduct are Defendants’

supervisors and/or owners.


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65. As a direct and proximate result of the Employers’ actions, Plaintiff has lost

wages and other forms of remuneration, and has suffered from humiliation, embarrassment,

anxiety and emotional distress.

66. Employer’s actions would detrimentally affect a reasonable person of the same sex

and position as Plaintiff.

WHEREFORE, Plaintiff Jennifer Finley requests that this Court:

a. Assume jurisdiction over this civil action;

b. Declare that Defendants wrongfully discharged Plaintiff in violation of the public

policies of the Commonwealth of Pennsylvania;

c. Declare that Defendants retaliated against Plaintiff, in violation of Title VII and

the PHRA, by terminating her in response to her protected activity;

d. Declare that Defendants discriminated against Plaintiff, in violation of Title VII

and the PHRA;

e. Declare that Defendants sexually harassed Plaintiff, in violation of Title VII and

the PHRA;

f. Award Plaintiff such back pay, front pay, employment benefits, and all other

remuneration to which she would have been entitled, had she not been unlawfully terminated;

g. Award Plaintiff compensatory, consequential, and punitive damages, both under

Pennsylvania law and Title VII;

h. Award Plaintiff such costs and expenses of suit, reasonable attorneys’ fees, and

expert witness costs;

i. Find for the Plaintiff and against Defendants on all counts of this Complaint; and

j. Order such other relieve as may be deemed just and proper.


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Respectfully submitted,

Date: June 27, 2013 /s/ Vincent J. Mersich

Vincent James Mersich (PA I.D. No. 310971)

Law Office of Vincent J. Mersich, LLC

400 Market Street

Elizabeth, PA 15037

Phone: 412.384.8803

Fax: 412.384.8805

Email: [email protected]

Janice Q. Russell (PA I.D. No. 66036)

Law Office of Janice Q. Russell

One Oxford Centre, 301 Grant St.

Suite 4300

Pittsburgh, PA 15219

Phone: 412.577.4007

Fax: 724.939.7012

Email: [email protected]


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