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April 22, 1998


The opinion of the court was delivered by: JOYNER



 April 22, 1998

 Presently before the Court is a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) submitted by defendants, Rose Tree Media School District and William T. Gamble. This action arises from a Complaint filed by Plaintiffs, Michelle McLaughlin ("McLaughlin") and Tommy McLaughlin asserting against the various defendants the following: Counts I-III assert claims under Title VII, 42 U.S.C. § 2000e, et. seq. ; Counts IV and V assert claims for civil rights violations pursuant to 42 U.S.C. § 1983; Count VI asserts claims under the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S.A. § 951, et. seq. ; Count VII asserts claims for Intentional Infliction of Emotional Distress; Count VIII asserts a claim for assault and battery; and Count IX asserts claims for loss of consortium.

 Defendant Rose Tree Media School District asks this Court to dismiss Counts IV, V, and VI as well as all punitive damages claims against it, and defendant William T. Gamble asks this Court to dismiss Counts IV, V, VI, and VII as well as the punitive damages claims against him. For the following reasons the Motion is Denied in Part and Granted in Part.


 Plaintiff, Michelle McLaughlin ("McLaughlin" or "plaintiff"), has been employed as a custodian at Penncrest High School ("Penncrest") in the Rose Tree Media School District since 1990. The defendants are Rose Tree Media School District ("Rose Tree" or the "school district"), and three of its former employees, Anthony R. Hicks ("Hicks"), the principal of Penncrest; William T. Gamble ("Gamble"), the assistant principal of Penncrest; and Thomas K. Simpson ("Simpson"), the head custodian at Penncrest.

 McLaughlin's complaint alleges that she and other women employees of the school district experienced sexual harassment during a six-year period consisting of a pervasive pattern and practice of quid pro quo and a hostile and offensive work environment. Plaintiff alleges that from 1990 until January 26, 1996, *fn1" Simpson, her direct supervisor, sexually harassed her and other female custodians. Among some of the alleged acts by Simpson are that: he publicly sexually assaulted female custodians by touching their breasts, buttocks, and crotch areas; made inappropriate sexual comments, including bragging about the size of his penis and sexual prowess; questioned employees about their preferred positions while engaging in sexual intercourse; kept pornographic photos in his office which he showed to female employees; and exposed himself to one female custodian. Additionally, Simpson allegedly regularly and repeatedly issued threats of retaliation and intimidation toward employees. *fn2"

 Further, Simpson allegedly gave favorably treatment to one female employee, Florence McClaren, who allegedly submitted to Simpson's sexual advances while McLaughlin received less favorable treatment due to her refusal of Simpson's advances.

 Beginning in 1993, McLaughlin and other female employees complained to Gamble about Simpson's sexual harassment and the favoritism shown to the employee who allegedly acquiesced. However, Gamble did nothing to stop the harassment. Instead, it is alleged that Gamble and Simpson together retaliated against McLaughlin for complaining.

 It is further alleged that Hicks, the principal of Penncrest, sexually harassed McLaughlin and, using his official status as principal, forced himself on McLaughlin and had sexual intercourse with her. Although Hicks continued to pursue McLaughlin, she rebuffed his advances. Hicks then repeatedly came to McLaughlin's work area to ask if her husband was away, hit McLaughlin on the bottom, tried to kiss her, and told her he was "the boss." Subsequent to this harassment and to McLaughlin's continued rejection, Hicks took adverse employment action against McLaughlin.

 McLaughlin alleges that she was subjected to retaliation by Simpson, Gamble, Hicks, and Rose Tree for complaining about this sexual harassment and for pursuing this sexual harassment claim.

 I. Legal Standard

 In considering a 12(b)(6) motion, *fn3" a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Pension Benefit Guaranty. Corp. V. White Consolidated Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Lance Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

 II. Plaintiffs' § 1983 Claim

 Defendants *fn4" argue that Counts IV and V of plaintiffs' complaint, which allege claims under § 1983, must be dismissed against them. Defendants reason that plaintiffs' § 1983 claims are subsumed by plaintiffs' claims under Title VII, which contains it own, exclusive, remedial scheme.

 In Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 20, 101 S. Ct. 2615, 2626, 69 L. Ed. 2d 435 (1981), the Supreme Court held that when a federal statute has its own comprehensive enforcement and remedial scheme, that scheme is the exclusive remedy for violations of the statute. See also Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979). This, so called, "Sea Clammers " rule has been applied by at least one circuit court to situations where a party attempts to bring a Title VII claim using the framework of § 1983. See Irby v. Sullivan, 737 F.2d 1418, 1428 (5th Cir. 1984). Similarly, our Court of Appeals has applied the Sea Clammers Rule to find that a plaintiff's § 1983 claims were subsumed under that plaintiff's Title IX claims. Pfeiffer v. Marion Center Area School District, 917 F.2d 779, 789 (3d Cir. 1990); see also Williams v. School District of Bethlehem, 998 F.2d 168, 176 (3d Cir. 1993)(applying Sea Clammers to hold plaintiff's equal protection claims was subsumed by Title IX claim); Bougher v. University of Pittsburgh, 713 F. Supp. 139, 145-46 (W.D. Pa. 1989), aff'd 882 F.2d 74 (3d Cir. 1989)(applying Sea Clammers to hold that plaintiff's substantive due process rights were subsumed by her Title IX claim).

 The distinction, however, between the cited cases and the instant case is that McLaughlin has a separate basis upon which her § 1983 claim rests. Because sexual harassment has been determined to be sex discrimination that can violate the Fourteenth Amendment right to equal protection, see Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990); Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir. 1989); see also Davis v. Passman, 442 U.S. 228, 235, 99 S. Ct. 2264, 2271-72, 60 L. Ed. 2d 846 (1979), there is a separate constitutional right--equal protection-- which serves as the basis for McLaughlin's § 1983 claim. See Bougher, 713 F. Supp. at 145-46 ( § 1983 action not subsumed under Title IX if there is a separate constitutional or statutory basis); see also Sharp v. City of Houston, 960 F. Supp. 1164, 1176-77 (S.D. ...

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