Regan v. Township of Lower Merion

36 F.Supp.2d 245

Lynne A. REGAN, Plaintiff, v. TOWNSHIP OF LOWER MERION, Joseph Daly, Individually and as Superintendent in the Lower Merion Township Police Department, and Michael McGrath, Individually and as Lieutenant in the Lower Merion Township Police Department, Defendants.

No. CIV. A. 98-2945.

United States District Court, E.D. Pennsylvania.

February 12, 1999.

COPYRIGHT MATERIAL OMITTED

Jill Fisher, Silverman, Coopersmith, Hillman & Frimmer, Philadelphia, PA, for Plaintiff.

J. Freedley Hunsicker, Jr., Thomas Martin, Philadelphia, PA, for Defendant.

MEMORANDUM

LOWELL A. REED, Jr., District Judge.

Presently before the Court is the motion of defendants Township of Lower Merion, Joseph Daly, individually and as Superintendent of the Lower Merion Township Police Force, and Michael McGrath, individually and as Lieutenant in the Lower Merion Township Police Force for partial dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Document No. 6). The complaint alleges violations of Title VII of the Civil Rights Act of 1961, 42 U.S.C. § 2000e et seq. ("Title VII") (Counts I and II), the denial of constitutional rights and equal protection under the law in violation of 42 U.S.C. § 1983 ("Section 1983") (Counts III and IV), as well as common law tort claims of intentional and negligent infliction of emotional distress (Counts V and VI).¹ Jurisdiction is proper pursuant to 28 U.S.C. § 1331 and the Court has supplemental jurisdiction over the State and common law claims pursuant to 28 U.S.C. § 1367. Based on the following analysis, the motion will be granted in part and denied in part.

I. Background

Plaintiff Lynne A. Regan was employed by the Township of Lower Merion Police Department as a dispatcher beginning July 12, 1993. Throughout her employment Regan alleges that the Township, through its employees, continually engaged in unwelcome behavior consisting of sexually offensive comments, inappropriate touching in a sexually suggestive manner and unwanted gifts of a sexual nature. (Complaint at ¶ 10). Specifically, Regan alleges that her supervisors — Sgt. Albany (now Capt. Albany), Sgt. Redifer, Sgt. Arrell Sgt. Higgins and Officer Ryan — watched pornographic movies in the radio room during Regan's shift, forcing her to watch them as well. (Id. at ¶ 11). Regan's request that the movies be turn off was refused. On one occasion, in response to her request that the sex movie be turned off, Sgt. Redifer grabbed his crotch. (Id. at ¶ 12).

Regan was also forced to watch male prisoners being strip searched on closed circuit T.V. in the radio room during her shift while having her supervisors make lewd comments such as "Isn't he a hairy one?" (Id. at ¶ 11). Regan was further harassed by Sgt. Albany who told her to wear more dresses or skirts so that he would have easier access to her. He also told Regan that her breasts were not big enough. (Id. at ¶ 13).

In retaliation for asking Sgt. Albany to cease his harassing conduct, Sgt. Albany reported Regan to Lieut. McGrath for insubordination. (Id. at ¶ 15). After explaining that she was curt with Sgt. Albany because she was tired of all the sexual comments, Lieut. McGrath told her he would not reprimand her but not to speak to anyone about the matter. Subsequently, Regan was unable to switch shifts with other co-workers despite other dispatchers being permitted to do so. Sgt. Albany was transferred in September of 1995. (Id. at ¶¶ 15, 16).

In further retaliation for reporting these various incidents of sexual harassment, Regan was issued written warnings for being late a number of times in or around September of 1995. (Id. at ¶ 18). When she attempted to grieve the warnings, her immediate supervisor, Officer Fitzpatrick told her he didn't care because he was leaving the department. A few weeks later, Officer Fitzpatrick's replacement, Officer Ray Gough, told Regan that she could not grieve the disciplinary action because she took too long to file a formal complaint. Also in September, Lieut. McGrath began calling Regan into his office at the end of her shift to tell her she was a terrible person and not liked by her co-workers. (Id. at ¶ 19).

In or around February, 1995, Sgt. Acello began to sit very close to Regan during work hours, touching her hair and rubbing her shoulders. He ignored Regan's request that he stop his inappropriate touching. In March of 1995, Sgt. Acello gave Regan a black "teddy" negligee. Regan told him the gift was unwanted and unwelcome. Sgt. Acello told her to keep it anyway. (Id. at ¶ 17).

In or around January of 1996, Regan was again written up for lateness and was suspended for two days in February, 1996. (Id. at ¶ 21). In March of 1996, Sgt. Hertzog disciplined Regan for accepting a personal call during her shift. Other employees who accepted personal calls were not reprimanded. Regan was again suspended for three days in the beginning of April, 1996. (Id. at ¶ 22).

Subsequently, Regan met with Roseanne Siso, personnel director for the Township, regarding her suspension. (Id. at ¶ 23). During the meeting, Regan complained about the harassment to which she had been subjected. Soon thereafter, McGrath began to tell Regan that she was going to be terminated. In or around May, 1996, Regan was advised by Siso that the Township's lawyer had conducted an investigation into her complaints, but that they could not be substantiated. (Id. at ¶ 24). Siso then informed Regan that she may need union representation at a meeting which would include Sgt. Herzog and Lieut. McGrath. (Id. at ¶ 25). Two union representatives were at the June meeting (although Herzog and McGrath were not there) and Regan was informed for the first time of various personal calls she was alleged to have made, complaints allegedly lodged by various unnamed staff members and reprimands she allegedly received. As a result, Regan was put on administrative leave. (Id.).

On June 11, 1996, Regan was summoned to a meeting with Siso. At the meeting, Superintendent Daly told her that she was being fired for allegedly missing 911 calls, accepting personal calls, lateness and other alleged wrongdoings. Regan maintains that she never missed a 911 call. (Id. at ¶ 26).

Approximately one week after Regan was terminated, Siso asked to meet with her again. At the meeting, Siso presented Regan with a release form for all her claims. Siso told Regan that if she did not sign the release she would be given a bad recommendation, all her benefits would be canceled and her unemployment claim would be contested. Siso also threatened Regan with a fine of $5,000.00 for each person Regan told about the contents of the release. (Id. at ¶ 27).

Subsequently, Regan filed this action alleging violations of Title VII and Section 1983 as well as common law torts. Count I is a claim for Title VII liability against the Township. Count II is a claim for retaliation under Title VII against the Township. Count III is a claim of liability under Section 1983 against all defendants (the Township as well as Daly and McGrath individually and in their official capacity). Count IV is a claim for retaliation under Section 1983 against all defendants. Count V is a claim for intentional infliction of emotional distress against all defendants. Count VI is a claim for negligent infliction of emotional distress against all defendants.

II. Legal Standard

Rule 12(b) of the Federal Rules of Civil Procedure provides that "the following defenses may at the option of the pleader be made by motion: (6) failure to state a claim upon which relief can be granted." In deciding a motion to dismiss under Rule 12(b)(6), a court must take all well pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). A motion to dismiss should only be granted 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, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (section 1983 claims are to be evaluated in accordance with the liberal standard enunciated in Rule 8(a)).

III. Discussion

Defendants have moved to dismiss: (1) Counts III and IV (the Section 1983 claims) against the individual defendants in their official capacities; (2) Count IV (retaliation under Section 1983) for failure to state a claim; (3) Count V (intentional infliction of emotional distress) for failure to state a claim and as barred by the Pennsylvania's Political Subdivision Tort Claims Act ("Tort Claims Act") as against the Township and the individual defendants in their official capacities; (4) Count VI (negligent infliction of emotional distress) for failure to state a claim and as barred by the Tort Claims Act; and (5) the claim for punitive damages under Section 1983 and Title VII.

For purposes of this motion, Regan concedes that the following claims are subject to dismissal: (1) Count III and IV against the individual defendants in their official capacity; (2) Count V and VI against the Township and the individual defendants in their official capacity; and (3) the claim for punitive damages against the Township in Counts I-IV. The remaining claims will be discussed in order.

A. Retaliation Under Section 1983

Regan concedes that her Section 1983 claim for retaliation against the individual defendants in their official capacity is subject to dismissal. Accordingly, those claims will be dismissed and I will consider her claim for retaliation against the Township and McGrath and Daly in their individual capacities. Defendants argue first that there is no cognizable claim for retaliation under Section 1983 and, therefore, the Count IV should be dismissed for failure to state a claim. D...