Hitchens v. County of Montgomery, CIVIL ACTION NO. 01-2564 (E.D. Pa. 2/11/2002)

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BARBARA HITCHENS, v. COUNTY OF MONTGOMERY, et al.

CIVIL ACTION NO. 01-2564.

United States District Court, E.D. Pennsylvania.

February 11, 2002.

MEMORANDUM AND ORDER

HERBERT J. HUTTON, District Judge.

Currently before the Court are Defendants Montgomery County, the Montgomery County Correctional Facility, Ed Echavarria, and Julio Algarin Motion's Motion to Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Docket No. 4), and Plaintiff's Reply to Defendants' Motion to Dismiss (Docket No. 5). For the reasons discussed below, Defendants' Motion is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

Plaintiff Barbara Hitchens ("Plaintiff") brought the current civil rights action against Montgomery County, Montgomery County Correctional Facility, Ed Echavarria, and Julio Algarin (collectively, the "Defendants") on May 24, 2001.¹ For nineteen years, Plaintiff worked as a correctional officer at the Montgomery County Correctional Facility (the "Correctional Facility"). According to Plaintiff, her supervisor, Ed Echavarria, began to sexually harass her in March of 2000 by making unwanted sexual advances and comments. Plaintiff informed Echavarria that his actions were inappropriate, but failed to complain to his superior, Deputy Warden Julio Algarin, who was Echavarria's stepfather.

According to Plaintiff, Echavarria made no further sexual comments or advances after May of 2000. After Plaintiff filed an EEOC complaint against the Correctional Facility and Echavarria, Echavarria was reassigned in September of 2000. Plaintiff received her first disciplinary action in her nineteen years at the Correctional Facility in March of 2001. In addition to her gender, Plaintiff believes that the treatment she received was in part motivated by race. Plaintiff is white and her supervisors, Algarin and Echavarria, are Hispanic. Furthermore, Plaintiff contends that she was being retaliated against because her son and fellow employee at the Correctional Facility was engaged in unionizing activities.

In May of 2001, Plaintiff filed the instant four-count Complaint against the Defendants. In Count I, Plaintiff asserts a claim for sexual harassment, race discrimination and retaliation in violation of Plaintiff's constitutional rights pursuant to 42 U.S.C. § 1981, 1982, 1983, 1985(1-3), and 1986. Plaintiff also alleges a violation of Title VII of the Civil Rights Act of 1964. Count II asserts a state law claim for intentional inflection of emotional distress against all Defendants, while Counts III and IV set forth claims for negligent retention and negligent supervision against the Correctional Facility. Defendants now move for dismissal of Plaintiff's Complaint.

II. LEGAL STANDARD

The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the complaint.² Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993). In considering a Rule 12(b)(6) motion, the court must accept as true all of the factual allegations contained in the complaint, as well as the reasonable inferences that can be drawn from them. See e.g., Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001); Lake v. Arnold, 232 F.3d 360, 365 (3d Cir. 2000). Dismissal of claims under 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The fact that a court must assume as true all facts alleged, however, does not mean that the court must accept as true "unsupported conclusions and unwarranted inferences." Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997). Rather, "courts have an obligation in matters before them to view the complaint as a whole and to base rulings not upon the presence of mere words but, rather, upon the presence of a factual situation which is or is not justiciable." City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998).

III. DISCUSSION

In her Complaint, Plaintiff alleges that Defendants violated her civil rights on a variety of grounds. Plaintiff also makes supplemental state law claims for intentional infliction of emotional distress, negligent supervision and negligent retention.³ Accordingly, the Court will address Defendants' objections to each of Plaintiff's claims in turn.

A. Title VII

Under Title VII, it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . ." 42 U.S.C. § 2000e-2(a).⁴ Defendants move for dismissal of Plaintiff's Title VII claim on two grounds. First, Defendants seek dismissal of the Title VII claim as it pertains to the individual defendants. Second, Defendants seek to dismiss the Title VII claim for a hostile work environment.

. Claims Against the Individual Defendants

"The law in this Circuit . . . clearly holds that individual employees cannot be held liable under Title VII." Jones v. School Dist. of Philadelphia, 19 F. Supp.2d 414, 417 n. 1 (E.D.Pa. 1998) aff'd 198 F.3d 403 (3d Cir. 1999); see also Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1077 (3d Cir. 1996) cert. denied 521 U.S. 1129, 138 L.Ed.2d 1031, 117 S.Ct. 2532 (1997). As the United States Court of Appeals for the Third Circuit explained, "Congress did not contemplate that [Title VII] damages would be assessed against individuals who are not themselves the employing entity." Sheridan, 100 F.3d at 1077. Accepting as true all of the factual allegations contained in the Complaint, Plaintiff is unable to maintain a claim under Title VII against the individual defendants. These claims, therefore, are dismissed with prejudice.

. Hostile Working Environment Title VII Claim

Defendants next seek to dismiss Plaintiff's Title VII hostile work environment claim against the remaining Defendants. According to Defendants, Plaintiff is unable to state a claim under Title VII because Plaintiff failed to complain about the alleged harassment to management level employees. See Defs.' Mot. Dismiss at 5. Moreover, Defendants contend that the harassment complained of by Plaintiff was not "so pervasive and open" that Defendants must have been aware of the alleged activity. See id.

Hostile work environment sexual harassment occurs when unwelcome sexual conduct unreasonably interferes with a person's performance or creates an intimidating, hostile, or offensive working environment. Weston v. Commw. of Pennsylvania, 251 F.3d 420, 425-26 (3d Cir. 2001). To prevail on a hostile work environment claim under Title VII, Plaintiff must demonstrate five elements: (1) the employee suffered discrimination because of sex; (2) this discrimination was "pervasive and regular;" (3) some negative impact resulted from the discrimination; (4) the conduct would effect a reasonable person in a similar situation; and (5) the employer's respondeat superior liability. See e.g., Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001); Kunin v. Sears Roebuck and Co., 175 F.3d 289, 293 (3d Cir. 1999) (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)).

In the instant case, Plaintiff's Complaint sets forth a prima facie case of hostile work environment sexual harassment under Title VII. First, accepting as true all of the factual allegations stated therein, Plaintiff's Complaint supports a determination that she experienced intentional discrimination because she is a woman. See Pl.'s Compl. at ¶¶ 22-33. "All that is required is a showing that [gender] is a substantial factor in the harassment, and that if the plaintiff had been [male] she would not have been treated in the same manner." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996). Echavarria's suggestive comments, unwelcome sexual advances, touching and grabbing, as plead in Plaintiff's Complaint, easily satisfy the intentional, sex-based discrimination element.

Plaintiff has also sufficiently pled facts that the harassment was "pervasive and regular," subjectively offensive to the Plaintiff, and objectively offensive to a reasonable person in a similar situation. Whether the alleged harassment is "pervasive and regular" is determined based on the totality of the circumstances, including the frequency and severity of the discriminatory conduct, its nature as physically threatening or humiliating as opposed to a mere offensive utterance, and whether it interferes with an employee's work performance. Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Plaintiff contends that the harassment went on for a period of two months and escalated from inappropriate comments, to sexual propositions and physical molestation in confined areas. It is clear from Plaintiff's Complaint that she subjectively perceived the environment to be abusive and that Echavarria's sexual advances were unwelcome to Plaintiff. Moreover, a reasonable person in Plaintiff's situation would likely find the unwelcome sexual advances, requests sexual favors, and other verbal and physical contact offensive.

Defendants argue, however, that Plaintiff is unable to meet the fifth and final element for a successful hostile working environment Title VII claim — respondeat superior liability. An employer's vicarious liability for a hostile work environment depends upon whether the alleged offender is the plaintiff's "supervisor with immediate (or successively higher) authority over the employee." Faragher, 524 U.S. at 807. If the supervisor took "tangible employment action" against the employee, such as discharge, demotion, or undesirable reassignment, the...